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IN THE SUPERIOR COURT OF JUDICATURE

IN THE HIGH COURT

ACCRA

CORAM; JUSTICE E.K. AYEBI JA (SITTING AS AN ADDITIONAL HIGH COURT JUDGE)

RULING ON SUBMISSION OF NO CASE TO ANSWER MADE FOR AND ON BEHALF OF THE ACCUSED PERSONS Charges: In all the state has indicted fifteen (15) persons before the court. They face a charge of conspiracy to murder contrary to sections 23(1) and 46 of the Criminal Offences Act, 1960 (Act 29) as amended in count one. The particulars of the offence state that on or about 24th March 2002, at Yendi in the Northern Region of Ghana, the said accused did agree to act together with a common purpose to murder the Yakubu Andani II, the Yaa-¬Na. The seventh (7th) accused person Zakaria Yakubu @ Zakaria Forest alone is charged with the crime of murder of the Yaa-Na contrary to section 46 of the Criminal Offences Act, 1960 (Act 29) as amended in count two. He is however at large and so he is not before the court to answer the charges against him. Background of the case There are two royal gates in Yendi in the Dagbon Traditional Area. They are the Andani and the Abudu gates. From 25th to 27th March 2002, factional fighting erupted between the two gates leading to the death of several people including the Overlord of Dagbon, Ya-Na Yakubu Andani II. Survivors suffered various degrees of injury. Several houses including the Gbewaa Palace were burnt and properties looted. Wuaku Commission On 25th April 2002, the then President John Agyekum Kuffuour by a Constitutional Instrument No. C.I. 36, 2002 appointed a Commission of Inquiry chaired by Justice I.N.K. Wuaku retired, (hence the name Wuaku Commission) to investigate the Yendi events. The specific terms of reference of the Commission were: (a) To make a full, faithful and impartial inquiry into the circumstance of and establish the facts leading to the events and the resultant deaths and injuries in Yendi between 25th and 27th March 2002. (b)To identify those responsible for the events and resultant deaths and injuries to persons and to recommend appropriate sanctions or actions against any such person(s) found to have been involved or caused any of the events. (c) To inquire into any matter which the Commission considers incidental or reasonably related to the events and the resultant deaths and injuries. Upon the submission of its report the government issued a White Paper on it. Amongst others, the government accepted the recommendation of the Commission that Yidana Sugri and Iddrisu Gyamfo who were found holding the severed parts of the Ya-Na Yakubu Andani II be prosecuted for murder. The Commission also recommended that Iddrisu Iddi @ Mbadugu (A1), Kwame Alhassan @ Achiri (A3), Mohamadu Abdulai @ Samasama (A4), Shani Imoro (Al2) and three others be prosecuted for conspiracy to murder. In accepting this recommendations, the White Paper directed the Attorney-General to instruct the Police to use the evidence before the Commission and its findings as the basis for further investigation and appropriate action. Meanwhile, between March 2003 and 30th July 2003, Yidana Sugri @ Red and Iddrisu Gyamfo were prosecuted for conspiracy to murder and murder of the Ya-Na but were acquitted and discharged on both counts. Change of Government and the Present trial When the New Patriotic Party (NPP) lost the 2008 Presidential and Parliamentary elections, the National Democratic Congress (NDC) came to the power. In its quest to find the murderers of the Ya-Na and in compliance with the directive in the White Paper, the Police Homicide Unit of the C.I.D. Headquarters carried out investigations into the matter. As at now the Attorney-General says sufficient evidence has been gathered on the murder of the Ya-Na against the fifteen (15) accused persons herein. Facts upon which accused are charged As I stated early on, there are two royal gates in Yendi. Accession to the skin as the Overlord of the Dagbon Traditional Area is on rotational basis between the two gates. A protracted litigation following a misunderstanding between the two gates led to the deskinment of Ya-Na Mohammadu Abdulai from the Abudu gate upon the recommendation of the 011ennu Commission. In his place, the late Ya-Na Yakubu Andani II was enskinned. The Abudu gate had since harboured discontent against this decision. In February 2002, the celebration of the Eid-Ul-Adha festival brought about disturbances in the Yendi Township. And information gathered by the security agencies indicated that firearms had been smuggled in by both gates. In order to avoid any clash, the District Security Council with the approval of Regional Security Council imposed a curfew and placed a ban on the celebration of the fire (Bugum) festival. Whilst the Abudu gate embraced the decision, the Ya-Na saw the ban as an affront to his authority.The Ya-Na then invited the Regional Minister and expressed his displeasure at the ban to him. Upon the promise and assurance by the Ya-Na that his people will not cause any trouble, the Regional Minister lifted the ban.On 25/03/2002, the Ya-Na decided to invite his elders to the palace to begin the celebration of the Bugum festival. He then asked Ziblim Abdulai to call Dugbulana, Ngbadogun. On their way back to the palace, some Abudu youths attacked and assaulted Ziblirn Abdulai. This incident sparked the three-day war/mayhem. This is because the attack was followed by sporadic shootings towards the Gbewaa palace by Abudus. The attack intensified in the evening resulting in some deaths. The situation grew from bad to worse on 26th and 27th March 2002. On the advise of the Ya-Na, women and children had to be evacuated from the palace.On 27th March, the Gbewaa palace fell to the Abudus. It was set ablaze and the shooting intensified. As some elders in the palace attempted to come out, they were shot dead. A7, Zakaria Yakubu @ Zakaria Forest (now at large) was seen decapitating the Ya-Na at a Kraal after he had been dragged there by A4, Mohamadu Abdulai @ Samasama and Shani Imoro (A12-sic). Others now at large poured petrol on the King after putting used tyres on him and set the body ablaze. According to the prosecution, evidence will be led to show that Iddrisu Iddi @ Mbadugu (A1), Alhaji Baba Abdulai @ Zohe (A2), Kwame Alhassan (A3), Mahamadu Abdulai, Salifu Mohammed and Zakaria Forest and others at large took active part in the planning and execution of the events that took place from 24th to 27th March 2002. Again evidence will be led to show that only houses belonging to the Andani gate were set ablaze. Additional to that there will be evidence to show that gun shot marks can still be found on the Gbewaa palace, on structures near the palace and where Dagbon chiefs are buried. It is upon these facts that the accused herein are charged with conspiracy to murder the Ya-Na Yakubu Andani II. Each and everyone of them has denied the charge against him. Prosecution's case The prosecution called twelve (12) witnesses including a Police investigator and a Pathologist. The prosecution without objection tendered the following documents: (i) Report on A Working Visit to Yendi Government Hospital – 29th to 30th March 2002, as Exhibit A. (ii) Autopsy Report on the Charred Remains of an Adult Male - Exhibit B. (iii) The Caution and Charged Statements of the 14 accused persons - Exhibit C, C1, to R, R1. (iv) Photographs of the Identification Parades - Exhibits S, S1 to Exhibit X. (v) Report on the Yendi Crisis by Police Special Investigating Team, Exhibit Y. (vi) Statutory Caution Statements - Exhibit Z series. On its part, the defence tendered through the prosecution witnesses the following: (a) Proceedings of the Wuaku Commission in 4 Volumes as Exhibit 1, 1A, to 1C (b)The Report of the Wuaku Commission of Enquiry (Yendi Events) Exhibit 2. (c) The White Paper on the Report of the Commission of Inquiry into the Yendi Disturbances of 25th March, 2002, Exhibit 3. (d)The Record of Proceedings in the Republic vrs Yidana Sugri & Iddrisu Gyamfo, Exhibit 4. (e)The Witness Statement of PW12 - Exhibit 5. Legal Basis of Submission of No Case At the close of the case of the prosecution, the defence applied to make a submission of no case to answer. The basis of this application is found in s.271 of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30). The section provides: "The judge may consider at the conclusion of the case for the prosecution whether there is any case for submission to the jury, and if the judge is of opinion that there is no evidence that the accused has committed any offence of which he could be lawfully convicted on the indictment upon which he is being tried, the Judge shall forthwith direct the jury to enter a verdict of not guilty and shall acquit the accused". What this provision means is that, at the close of the case for the prosecution, it is within the discretion of the judge to decide that no case has been made against the accused on the offence he is being tried for. If the judge so decides, he stops the case. The judge reaches that conclusion based upon the fact that "there is no evidence that the accused has committed any offence". "No evidence" as stated does not only mean no evidence at all but also that where the evidence led is such that the court, had there been no other evidence and the jury had acted upon it, must have set the verdict aside - see Avery vrs Bowden [1856] 6 E1 & B1m 953; 1119 applied in State vrs Ali Kassena [1962] 1 GLR 144 at page 149. In clearer language Willis J. in Ryder vrs Wombell [1888] L.R. 4 Exch. 32 at page 39 said: "It is now settled that the question for the judge is not whether there is literally no evidence but whether there is none that ought reasonably to satisfy the jury that the fact sought to be proved is established". In the Practice Note (Magistrates: No case to Answer: Criminal Charge) (1962), Lord Parker C.J. said of submissions of no case to answer thus: "A submission that there is no case to answer may properly be made and upheld (a) when there has been no evidence to prove an essential element in the alleged offence; (b) when the evidence adduced by the prosecution has been so discredited as a result of cross-examination or so manifestly unreliable that no reasonable tribunal could safely convict on it" He continued that: "Apart from these two situations, a tribunal should not in general be called upon to reach a decision as to conviction or acquittal until the whole of the evidence which either side wishes to tender has been placed before it. If, however, a submission is made that there is no case to answer, the decision should depend not so much on whether the adjudicating tribunal (if compelled to do so) would at that stage convict or acquit but on whether the evidence is such that a reasonable tribunal might convict. If a reasonable tribunal might convict on the evidence so far laid before it, there is a case to answer".This Practice Direction has been applied by our Supreme Court in 1962 in State vrs Ali Kassena [1962] 1 GLR 144 with approval. It has been followed as a matter of judicial precedent by all courts, even after the enactment of the Evidence Act, 1975 (NRCD 323). So for a judge to uphold a submission of no case to answer, he/she must be satisfied that: (a) an essential element or ingredient of the offence charged has not been proved. (b) the evidence led in support of the charge has been so discredited as a result of cross-examination and/or (c) the evidence led is so manifestly unreliable that no reasonable tribunal could safely convict on it. See State vrs Annan [1965] GLR 600 and Gyabaah vrs The Republic [1984-86] 2 GRL 461 (C.A.) Burden of proof and standard of proof Under the Evidence Act, 1975 (NRCD 323), the burden of proof is termed the burden of persuasion. It is trite knowledge that in criminal cases the burden of proof is on the prosecution throughout. The prosecution is required to produce sufficient evidence on a fact essential to establish the guilt of the accused, so that on all the evidence a reasonable mind could find the existence of that fact beyond reasonable doubt - s.11(2) of the Act. But on a fact or an issue not essential to the guilt of the accused, the proof is on the balance of probabilities. In the case of the accused except in cases where a statute throws the burden upon him, he is not obliged to prove anything. All that the law requires of him is to raise a reasonable doubt as to his guilt on the fact in issue - s.11(3). But then unless and until the prosecution has discharged the burden of proving the guilt of the accused to the requisite degree, no burden will be shifted on to the accused or assumed by him - see s.15(1) of the Act. In C.O.P. vrs Antwi [1961] 1 GLR 408 (S.C), the court put the relative burdens of the prosecution and accused this way: "The fundamental principles underlying the rule of law are that the burden of proof remains throughout on the prosecution and the evidential burden shifts to the accused only if at the end of the case for the prosecution an explanation of circumstances peculiarly within the knowledge of the accused is called for. The accused is not required to prove anything; if he can merely raise a reasonable doubt as to his guilt, he must be acquitted". What standard then must the evidence led by the prosecution attain at the end of its case? The standard is stated in s.11(2) of the Act I have referred to otherwise it will not be lawful for the judge to call upon the accused to answer the charge against him. In plain language, s.13(1) of the Act provides that the standard of the evidence produced on the issue or fact essential to the guilt of the accused under s.11(2) must reach proof beyond reasonable doubt. What is proof beyond reasonable doubt is not defined in the Evidence Act but in Miller vrs Minister of Pensions [1947] 2 All ER 372 Denning J. described the term. He says the evidence against the accused must be so strong as to leave only a remote possibility in his favour which can be dismissed with the sentence "of course it is possible, but not in the least probable". The term he says does not mean proof beyond a shadow of doubt. It means therefore that the evidence by the prosecution must attain the degree which in other words is referred to as a prima facie case. This term simply means that the charge or allegation is sufficiently supported by evidence as to call for an answer or an explanation from the accused. Thus in Sher Singh vrs Jifendranath Sen [1931] I.L.R. Calc. 275 at 286, Ghose J. defined prima facie to mean that "there is a ground for proceeding ...., Proof is nothing but belief according to the conditions laid down in the Evidence Act (in our case NRCD 323)". Therefore unless the standard of proof reached the requisite degree under our Evidence Act, there will be no ground for the court to proceed, that is to say, to call on the accused to explain his side of the story. To quote the words of Lord Parker C.J. in the Practice Note approved in the Ali Kassena case (supra), the evidence led at the end of the prosecution's case should be such that a reasonable tribunal might convict. If a reasonable tribunal might convict on the evidence so far laid before it, there is a case to answer. The learned Chief Justice used the phrase "might convict" because accused's version of the story was yet to be heard. If the accused in his answer fails to raise a reasonable doubt as to his guilt which is all that the law required of him or exercised his right to remain silent for fear of self-incrimination, then the court can go ahead and convict the accused based on that evidence led by the prosecution only. This Practice accords with the general principle of criminal law that the accused is presumed innocent until he pleads or is proved guilty. And in s.23 of the Evidence Act, the principle is applied to the determination of both the basic and the presumed facts which must be found beyond reasonable doubt should the accused raise no reasonable doubt to either the basic or presumed facts. At page 13 of the Response by the Prosecution to the Defence's Submission, reference was made to the Supreme Court case of G/CPI. Valentino Gligah and EC/1 Abdulai Aziz Atiso vrs Republic, Criminal Appeal No. J3/4/2009 Unreported Judgment dated 6th May 2010. It is submitted that the burden on the prosecution to prove its case beyond reasonable doubt is not discharged at the close of the prosecution's case but at the end of the trial. That submission is based on a holding of the Supreme court at page 5 as follows: “…..it is important for this court to bear in mind that the Constitution, 1992, Article 19(2) presumes everyone innocent until the contrary is proved. In other words, wherever an accused person is arraigned before any court on any criminal trial, it is the duty of the prosecution to prove the essential ingredients of the offence charged against the accused person beyond 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". With all due respects to the prosecution, I do not glean from this dictum of the Supreme Court that, the burden on the prosecution to prove its case beyond reasonable doubt can only be discharged at the end of the whole case, i.e. after the accused has given his side of the story. To my mind the dictum only reformulated the burden of proof on the prosecution, on the accused and when the burden of proof shifts to the accused as I have been discussing under sections 11(2), 11(3) and 15 of the Evidence Act, NRCD 323. And it is not different from the submission both sides have made in their addresses. The question of whether the prosecution is required to prove its case beyond reasonable doubt at this stage has been in controversy in years gone by. In R. vrs Ojojo [1959] 2 GLR 207, the Court of Appeal asked why the defence was called upon if there was doubt in the prosecution's case at the close of it. Consequently, the Court quashed the conviction of accused by the trial court. This case supports the view that the standard of proof at the end of a prosecution's case should be beyond reasonable doubt. But two years later in State vrs Sowah & Essel [1961] 2 GLR 743, the view of the Supreme Court suggests that whether or not the prosecution has proved its case beyond reasonable doubt is a question which must be left until the end of the whole case. This view supports the proponents of substantial justice theory. It would appear that the case of Ali Kassena (supra) also decided in 1962 based on the Practice Direction has put an end to the controversy in favour of the Ojojo case (supra). And there is statutory support for that view held in the Ojojo case (supra) in sections 10(2) and 22 of the Evidence Act, NRCD 323. And in view of the provisions of the law in the sections which require the prosecution to prove the existence of a fact or a presumed fact beyond reasonable doubt, Justice Ofori Boaten J.A. (as he then was) in his book The Ghanaian Law of Evidence at page 254 (1st Edition) held the view that the English Practice Guidance applied with approval in the Ali Kassena case (supra) is superfluous. That is not all there is to the submission that the burden on the prosecution to prove its case beyond reasonable doubt is discharged at the end of trial. If that submission is acceded to by the court, then s.271 of Act 30 under which this application is brought should have become a redundant provision many years ago in our criminal jurisprudence. This is because s.271 does not provide that the standard of proof required at the end of the prosecution's case should be anything lower than the general standard of proof beyond reasonable doubt in all criminal cases. And indeed in practice, if a submission of no case is wrongly overruled and accused opens his defence and he is eventually convicted, the appellate court does disregard all the evidence given after the submission of no case was made. The practice is based on the age old obligation on the prosecution to prove its case beyond reasonable doubt in order to succeed. It is not for the accused to assist the prosecution at the trial to prove the case against the accused by filling in the missing gaps in the evidence adduced by the prosecution - see the cases R. vrs Osabu and Maaseyo [1957] 3 WALR 180 (C.A.) Nyarko vrs The State [1963] 2 GLR 59 (S.C.) and Gyabaah vrs The Republic [1984-¬86] 2 GLR 461 (C.A.) And for the same reason, in determining whether or not based on the evidence led by the prosecution, an accused has a case to answer, the court ought not to make an attempt to make any findings of facts. This is because at the close of the case for the prosecution, all the facts in issue are legally rebuttable facts and therefore displaceable by the evidence of the accused - see Republic vrs Accra Special Circuit Court; Ex-parte Akosah [1977] 2 GLR 283. Therefore in determining whether a prima facie case has been made, the court should confine itself to the analysis of the evidence of the prosecution witnesses with regard to their credibility. Floating Standard of Proof In Bater vrs Bater [1951] P.35, Denning L.J. (as he then was) held the view that there are degrees of proof in the general standard of proof beyond reasonable doubt. In some cases the lower bracket of proof within the standard is required or sufficient. In others proof of the upper bracket of the standard is required. In the instant application, the prosecution is of the view that, since the evidence led is direct and primary, the lower end of the bracket of proof beyond reasonable doubt is sufficient. This is as opposed to proof by circumstantial evidence which must reach the upper end bracket of the standard.So according to that proposition the standard "floats" depending on the subject-matter. The prosecution submits that it has met the requisite bracket which is the lower end because the evidence it led is direct, cogent and first-hand supported by documents. It has therefore discharged the burden of proof on it so far as the consideration of this submission of no case is concerned. The prosecution submits therefore the application is misconceived. It should be dismissed and accused called upon to open their defence. On the other hand, the defence submits in its address that the evidence led by the prosecution is watery, suspicious and dubious and for that matter pathetically unreliable. It is therefore not a fit case to call upon the accused to answer. On Denning L J's proposition that there exists degrees, in fact two brackets in the requirement that the prosecution must prove its case beyond reasonable doubt, it is my view that in our law, there is no "floating standard". What the law requires of the prosecution is proof beyond reasonable doubt, pure and simple. And what matters n attaining that standard is the quality of evidence and the cogency of proof. The more serious the offence charged, the high the degree of probability that is required. Similarly, the more inprobable the event the stronger must be the evidence that it did occur. That being so, in determining this application of submission of no case, I will, based on statute law and case law consider whether the prosecution at the close of its case on 4/11/2010, has proved its case beyond reasonable doubt. Put differently, I will consider whether the prosecution has established a prima fade case against the accused. The Charge of Conspiracy to Murder The charge which the accused face and which the prosecution sought to prove against them is conspiracy to murder. Section 23(1) of our Criminal Offences Act, 1960 (Act 29) as amended defines conspiracy as follows:- "If two or more persons agree or act together with a common purpose for or in committing or abetting a crime, whether with or without any previous concert or deliberation, each of them is guilty of conspiracy to commit or abet that crime as the case may be". The case of C.O.P. vrs Afari and Addo [1962] 1 GLR 483, S.C. provides a classic explanation of the above definition of conspiracy in our law. The court stated: "In the opinion of the court, the Ghana law of conspiracy is wider in scope and content than the English law on the subject. It consists of not only in the criminal agreement between two minds, but also in the acting together in the furtherance of a common criminal objective". The case of Azametsi & Others vrs The Republic [1974] 1 GLR 228 explained the crime of conspiracy in similar terms that "The crime of conspiracy consisted in an agreement or acting together by two or more persons with a common purpose for or in committing or abetting a crime whether with or without any previous concert or deliberation. It was not always easy to prove agreement by evidence, but it could be inferred from the conduct of and statements made by the accused persons". I notice that the prosecution took issue with the ingredients or elements of the offence of conspiracy itemized by the defence in its submission. Certainly the fact of conspiracy being an inchoate offence cannot make it an element of itself. This is because abetment and attempt are also inchoate offences. Also ingredient in (e) - an agreement to do a lawful act by an unlawful means does not always result in the commission of a crime. The prosecution went to great lengths to do an exposition on the law of conspiracy at common law and other jurisdictions as compared to our law: that is commendable. But basically, conspiracy in our law has two legs - (a) that the accused persons agreed together with a common purpose for or in committing or abetting a crime or (b) that the accused persons acted together with a common purpose for or in committing or abetting a crime. When the two legs are expanded, for the purposes of proof seriously, in order to succeed, the charge of conspiracy to murder, prosecution must prove that: (a) there are two or more persons, (b) who agreed or acted together, (c) in pursuance of a common purpose (d) and the said purpose of their agreement or acting together must be to commit or abet a crime, in this case murder. And murder is committed if it is proved that: (i) Ya-Na Yakubu Andani II is dead (ii) he died as a result of harm (iii) the said harm was unlawful (iv) the harm was also intentionally caused (v) and these accused persons caused or abetted the said harm. See Serechi vrs The State [1963] 2 GLR 531, S.C. These ingredients in a charge of murder are isolated from the charge as defined in s.47 of Act 30/60 thus: "whoever intentionally causes the death of another person by any unlawful harm is guilty of murder, unless his crime is reduced to manslaughter by reason of such extreme provocation or other matter of partial excuse as mentioned in s.52". There are fifteen (15) persons charged in this case. That only satisfies the first requirement that conspiracy must involve two or more persons. It is sufficient as the law stands to prove either agreement to commit or abet the crime of murder or acting together to commit or abet the crime of murder. It is better still if the agreement and acting upon the agreement are proved. But as it is observed in the C.O.P. vrs Afari & Addo case (supra) by the Supreme Court, "it is rare in conspiracy for there to be direct evidence of the agreement which is the gist of the crime. This usually has to be proved by evidence of subsequent acts done in concert and indicating agreement" - see page 486 of the report. In R. vrs Brisac [1803] 4 East 164, Grose J. on the issue of agreement in a charge of conspiracy said: "Conspiracy is a matter of inference, deduced from certain criminal acts of the parties accused, done in pursuance of an apparent criminal purpose in common between them". See also Professor Henrietta .J.A.N. Mensa-Bonsu's article on Conspiracy In Two Common Law Jurisdictions - A Comparative Analysis [1992] 4 Radic 419. Conspiracy may also be proved by evidence of one of the group who betrays the others and that evidence is considered credible. However, once agreement has been established, there is conspiracy and it is immaterial that nothing has been done in furtherance or in pursuance of it. Thus in Kenny's Outlines of Criminal Law, 17th Edition at page 391, it is stated: "a person may be convicted of conspiracy as soon as it has been formed, and before any overt act to carry out the agreed purpose has been committed. The offence is complete as soon as the parties have agreed to their unlawful purpose although nothing has yet been settled as to the means and devices to be employed for effecting it". In Boahene and Monney vrs The State [1965] GLR 229 at holding 4, the Supreme Court observed that one of the conspirators may recant but he could not undo or countermand the act of his previous agreement. Further in the case of State vrs Yaw Boahene [1966] 2 GLR 554 at 555 at holding 2, the test laid when considering proof of a charge of conspiracy is whether the accused have a common purpose and not whether they were acquainted with each other. It is also to be noted that, the mens rea (guilty knowledge) is inherent in the conspiracy itself or inferred from the overt acts. In the particulars of offence of the charge of conspiracy against the accused, it is stated that on 24th March 2002, at Yendi, they agreed to act together with a common purpose to murder the Ya-Na. As I have indicated above, our law of conspiracy consists of two main elements - agreement with or without previous concert or deliberation between two or more minds to commit or abet an offence; or acting together with a common purpose to commit or abet a crime. Generally proof of either element is sufficient to secure a conviction. It however appeared that the language of the particulars of offence has put together or mixed up the two elements. So the prosecution now has the burden to prove the "agreement to act together" by the accused. And yet it is agreed by the authorities quoted above that it is rare to prove or establish agreement by direct evidence, and indeed no such direct evidence was led by any of the prosecution witnesses in this case. Any talk of agreement, could only be referable to an indirect/circumstantial evidence. That indirect or circumstantial evidence is the overt acts attributed to the accused persons from which an agreement can be referred or deduced. That being so, the evidence led by the prosecution in proof of the charge of conspiracy was not and could not have been direct evidence in proof of the crucial element of agreement. As regards, the element of agreement in a charge of conspiracy, illustration (a) of s.23(1) of Act 29/60, in my view, appeared to be the picture the prosecution has tried to paint in this case. And indeed that is the thrust of the prosecution's address too. The illustration states: "If a lawful assembly is violently disturbed any persons who take part in the disturbance are guilty of conspiracy to disturb it although they may not have personally committed any violence and although they do not act in pursuance of any previous concert or deliberation". The case put forward by the prosecution is that on 25/03/2002, the Abudus attacked the Gbewaa palace when the Ya-Na assembled his elders to commence the activities for the celebration of the Bugum (fire) festival. The attack continued on the palace until 27/03/2002 when the Ya-Na was killed. Those involved in the attack according to the prosecution are these accused and some other persons now at large. It is the submission of the prosecution that anybody including these accused persons who was concerned directly or indirectly, by word or conduct in the attack on the palace leading to the death of the Ya-Na is liable on the charge of conspiracy. However, the defence countered that the Andanis first attacked the Abudus. The Abudus repelled the attack. The attack and the counter-attack led to a factional war between the two royal gates for three days. Indeed PW4 Alhassan Yakuku @ Nat in his indirect evidence said on 26/03/02, there was exchange of gunfire between the two factions till evening. PW9 is also such warrior of the Ya-Na. In her presentation of the facts of the case, the D.P.P. stated that on 27/03/02, the Gbewa palace fell to the Abudu. That is a confirmation of the assertion of the Abudus that they fought a war. It meant therefore that Andanis who also fought are equally liable.These fifteen (15) accused persons not only participated in the war which led to the death of the Ya-Na, the prosecution alleged the seventh accused alone is charged with the murder of the Ya-Na. In the address on behalf of the accused persons counsel submitted that the trial of A7 in absentia is not in accordance with procedure laid down in the Constitution, 1992. But the D.P.P. in the responded that A7 is not on trial as at now. That being so, I may as well discharge him for the purposes of this trial. What I have to do now is to determine, based on the evidence laid before the court by the prosecution whether the accused have a case to answer. In so doing, I will consider any or all of the following three situations: (a) whether there is no evidence to prove an essential element of the charge of conspiracy, or (b) whether the evidence adduced has been so discredited as a result of cross- examination, or (c) whether the evidence is so manifestly unreliable that no reasonable tribunal could safely convict on it. In R. vrs Galbraith [1981] 2 ALL ER 1060, Lord Lane, C.J. gave a guide as to how a judge should approach the matter as follows:- "(1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case. (2) The difficulty arises where there is some evidence but it is of a tenuous character, for example, because of inherent weakness or vagueness or because it is inconsistent with other evidence: (a) where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict on it, it is his duty, upon a submission being made, to stop the case. (b) where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness's reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury". The matters which fall within the province of the jury are matters of fact of which they are the final arbiters. But it is the duty of the judge to decide all questions of law arising in course of the trial. A submission of no case under section s.271 of Act 30/60 it is held is question of law and must therefore be decided by the judge - see Zortorvie vrs The Republic [1984-86] 2 GLR 1, C.A. Relevance of the Proceedings of the Wuaku Commission I recall that on 17th September 2010, the prosecution objected to the tender of the proceedings of the Wuaku Commission on the ground that the report was not authenticated. I gave the defence counsel the opportunity to have the four volumes of the proceedings authenticated in accordance with s.162 of the Evidence Act. I did so because of the view I held that, the proceedings were not only relevant to this trial but also formed the very foundation of this trial. Based on that understanding, the four volumes of the proceedings, the Report of the Commission and the Government White Paper were admitted into evidence. However, the D.P.P. submitted in her address that the proceedings of the Commission are completely irrelevant to the determination of issues in this trial. This is because the mandate of the Wuaku Commission was to make findings of facts whiles this court has the mandate to try the accused persons. For the same reason, the prosecution submits that the evidence before Commission is not relevant to prove or disprove the truthfulness of the testimonies of the prosecution witnesses in this trial. The proceedings in the Republic vrs Yidana Sugri & Another are similarly considered irrelevant to this trial of accused on a charge of conspiracy to murder. I have very early on listed the terms of reference of the Wuaku Commission. Indeed it was a fact-finding Commission. But the facts found were the basis for prosecuting Yidana Sugri and Idrissu Gyamfo on a charge of murder. The process of eliciting evidence before the Commission and a court of law are not different in that witnesses gave evidence under oath and were cross-examined. The subject-matter or issues the witnesses testified on before Commission are the very issues for which the accused herein are being tried. The Wuaku Commission in its Report made specific recommendations. Amongst them is that further investigations should be conducted with the view of prosecuting certain people who were mentioned. The Government White Paper on the Report directed that the evidence before the Commission and its findings should form the basis for this further investigation. And at page 3 of the prosecution's address, the D.P.P. stated clearly that the trial of the accused herein followed a painstaking investigation the police have carried out in compliance with the recommendation in the White Paper. Clearly, the compliance with that recommendation is the sole foundation of this trial. How then can the prosecution in all honesty turn round to invite the court to ignore the proceedings of the Commission on the ground that it is irrelevant. And because of the view the prosecution held of the proceedings, it submitted that the proceedings were admitted to prove the fact that the Commission was actually set up to investigate the Yendi crisis which is part of the facts of this case but not to prove its contents. I however find from the record that when it suits the prosecution, it made reference to the Report of the Wuaku Commission (Exhibit 2) to support its case for example at page 49 of the address reference was made to the fact that the Ya-Na requested to be rescued by sending two messengers to the District Security Council through the A8 the then District Chief Executive. Similarly at page 50 of the address, in chastising A8 for failing to carry out his administrative duties in accordance with Article 23 of the 1992 Constitution, heavy reliance was placed on the view expressed by the Commission on the role played by A8 and the consequent recommendation to re-assign him - see pages 75, 85 and 86 of the Report in both cases. I find the whole submission on the proceedings of the Commission not only surprising as it is a complete somersault but also most unfortunate. The whole purpose of tendering the proceedings of the Wuaku Commission is to attack the credibility of the prosecution witnesses who testified on the same issues or matters as in this trial. Indeed the line of cross-examination of the defence exemplifies the purpose of putting the proceedings into evidence. The proceedings were therefore not tendered as a "thing or object" against which a crime has been committed but to provide the court with the evidence of its contents. In arguing that the evidence led by the prosecution is first-hand, direct and consistent and for that matter reliable, the address limited itself to only the viva voce testimonies of its twelve witnesses. But that is not the only evidence led so far before the court. The documents I have listed as tendered and accepted by the court form part of the evidence of the prosecution. The only exception so far as the prosecution's case is concerned is the cautioned statements of the accused which are yet to be tested under cross- examination. Thus in s.179(1) of the Evidence Act, "evidence" means "testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or non-existence of a fact". In view of the meaning assigned to "evidence" by the Act, the proceedings of the Wuaku Commission is evidence for the purposes of this trial tendered to prove the existence or non-existence of matters testified to by the prosecution witnesses. It is my view therefore that the proceedings are relevant to the consideration of this application and I will certainly do so. Furthermore, the Wuaku Commission was set up just three months after the crisis. At the time the events were very fresh in the minds of the witnesses. Their testimonies before the Commission in the natural course of things should be accurate. Over time memories fade. So the inability to recollect minor details in court eight years later is understandably pardonable. However, a complete departure from or additions to the previous testimonies cannot be countenanced. The contents of the proceedings are thus a necessary aid in assessing the credibility of the witnesses. Assessment of Prosecution's Case Against Each Accused The defence in its approach, assessed the case against each accused separately and drew a conclusion. The prosecution on its part singled out A1 and A8 and assessed the case against them separately. Thereafter, it sort of lumped together the rest of the accused. The approach recommended in State vrs Annan & Others [1965] GLR 600 is that "where several accused persons are charged on one indictment, it is obligatory to consider the case against each accused separately". This approach is worth emulating in order to do real justice to each of the accused persons. A1 - Iddrisu Iddi @ Mbadugu The prosecution witness who mentioned Al referred to him derogatorily as so-called Doho or father. In the summary of evidence it is alleged that he and others known and unknown took part in planning and execution of events leading to the crisis. He is also alleged to have played a pivotal role in the death of the Ya-Na. Woefully none of the prosecution witnesses led any such evidence directly or indirectly. But PW3, Imrahama Sayibu and PW4, Alhassan Yakubu @ Nat accused him of rejoicing with other Abudus at the death of the Ya-Na. It is the case of PW3 that after the head of the Ya-Na had been cut off and pictures taken with it, the group went to the Abudu area. After a while they returned to the spot amidst drumming and dancing. A1 he said led the group dancing with the head of the Ya-Na stuck on a spear. They came to the spot where the body was burnt and went back. PW3 said he saw this scene from his hide out behind or beside a heap of firewood at a time when he was bleeding profusely from gunshot wounds on both thighs and the buttocks. On his part PW4, also from the same location as PW3, said he saw a group of people drummed and danced to the spot. Amongst them, he could recognized only the Regent of Bola and Zolanko Lana Yemyemsu, the one nicknamed as their father, Doho. In court PW4 then identified A1 as Doho and A12 Shani Imoro as Zalanko Lana. Further on, the same PW4 identified A1 as the Zalanko Lana Iddrisu. In June 2002, both witnesses testified before the Wuaku Commission, barely three (3) months after the crisis as CW18 and CW26 respectively. None of the two witnesses mentioned Al as being amongst the people jubilating with the head of the Ya-Na. in June 2002, all these events which took place in March were certainly fresh in the memory of the witnesses than September 2010, eight good years thereafter. And it is very clear from the evidence of PW4 that even as at today, he does not know A1. At the Commission he accepted that Zalanko Lana is a title and his real name is Iddrisu Gyamfo. But A12 whom he identified also as Zalanko Lana is not the said Iddrisu Gyamfo but called Shani Imoro. So the Zalanko Lana PW4 told the Wuaku Commission held the head of Ya-Na on a spear could not have been A1. Yet again PW3 made a more serious allegation against A1 for the first time in this court. As I stated he sustained gunshot wounds. So he went to the Yendi Hospital on Wednesday, 27th March 2002. He was admitted. According to him during the twelve noon GTV news he saw A1 in the company of senior army officers, some chiefs and the senior Minister, Mr. J. H. Mensah on the screen. According to him A1 said to the hearing of the people that "since Ya-Na became the chief of the Dagomba's for 28 years, Abudus had no peace, that is why they came out and killed him". PW3 told the court that A1 made this statement in the presence of soldiers and policemen but nothing happened to him. He there fore became scared and he felt not safe. Without being discharged, he left the hospital for Tamale. Incriminating as this evidence is, PW3 never told Wuaku any such confession by A1 on behalf of the Abudus. What was captured in the report of the Commission, exhibit 2 is that PW3 was admitted on Wednesday 27th and discharged on Thursday 28th March and in the morning. And from the hospital, he went home and not Tamale. The records from the hospital made available to Commission confirmed this date of admission and date of discharge. That being so, the statement PW3 said he heard Al aired on GTV news in the afternoon of 30th March 2002 whiles on admission at the hospital cannot be true. But PW3 maintained his ground, by accusing the Commission of not having correctly recorded him. It is on record that Mr. Anthony Rexford Wiredu (PSA) has debunked this accusation. He told the court authoritatively that after listening to the cassette recordings of the proceedings of the Commission, the Commission had captured correctly the evidence of each and every witness who appeared before it. The prosecution in its address submitted that by holding the head of Ya-Na on a spear and dancing with the others, A1 has concurred in the conspiracy to murder the Ya-Na. He is therefore reliable. But then this evidence of PW3 and PW4 against A1 contradicts what they told the Wuaku Commission. The evidence is also contradictory of each other and discredited as a result of cross-examination. What the law required is that the jury had to be certain of the role played by A1 whether by words or deeds during the crisis. This evidence led against him by the witnesses lack that certainty and reliability. A2 - Alhaji Baba Abdulal Iddrissu @ Zohe A2 was implicated by PW3 Imrahama Sayibu. In the summary of evidence A2 and two others were alleged to have short PW3 in both thighs. He is also alleged to have dragged the Ya-Na by the legs with A12 to a distance. In court PW3 stated that in his bid to escape on leaving the palace A2 and two others shot at him. He sustained gun-shot wounds on both thighs and on the buttocks. He showed the scars on his thighs and buttocks to the court. When he was shot he fell down and laid there. He managed to get to the heap of firewood where Pw1, PW4 and others were hiding. From that location he saw A2 took pictures with the head of the Ya-Na. Under cross- examination, he mentioned A2, Baba Kruger and Abdulal Cheke as those who shot at him. Contrary to what was stated in the summary of evidence, PW3 said A4 and A12 pulled the Ya-Na by the legs to the spot. Before the Wuaku Commission, PW3 testified that he was shot in the two thighs only. First, a man by name Baba Kruger shot towards him. Then he met A2 and Abdulal Cheke around the house of Ya-Na's first wife holding guns. This time he said Cheke shot towards his legs and he fell down because the bullets got into his thighs. It is noticed that before Wuaku, PW3 did not say A2 shot at him. He mentioned Cheke who is not on trial now. And of the three people including A2 whom he told the court shot at him, whose bullets caught him in the thighs and the buttocks. In particular whose shot caught him on the buttocks as he might have turned his back towards them. The evidence by PW3 that A2 was amongst those who shot at him appears to be false. Similarly the evidence that A2 took pictures with the head of the Ya-Na was not part PW3's evidence before Wuaku Commission. In any case, at what point in time, did PW3 see all these events? After he had sustained the gunshot wounds at three places and was in severe pains? PW3 has denied his testimony as captured in the Wuaku Report. But then the evidence he gave in court did not establish beyond doubt that it was A2 who shot him in the thighs and buttocks. In short, PW3 did not know who shot and caused injuries he sustained to him. It is therefore not surprising that in the address of the prosecution, nothing was said directly about A2. A3 - Kwame Alhassan @ Achiri In the summary of evidence three people made allegation against A3. Amongst them was PW3 but in court he said he made no mention of A3 in his statement and also at the Wuaku Commission. Grundo Wumbey listed as PW8 in the Bill indictment was not called. In the end Wumbey Binchera testified against A3 as PW7. The witness is a night watchman. His case is that on 25th march, 2002 he loaded some yam seedlings on his bike to go and plant. He met A3, Ayoma and Moro Champong. Moro Champong asked him where he was going and he answered the farm. The dialogue continued that Moro Champong told him he is not going to live him to see the next farming season because they were going to kill all the Andanis. PW7 said he went to the farm alright till late evening when he reported at his duty post. The following day 26th March, 2002 in the morning he was informed about the attack on the palace the previous day. But that morning the shooting had not started and so he went home. However after PW7 had identified A3 in court, he said he could not leave home on 26/03/02 until an armour car passed in front of his house and went close to the palace. When the armour car turned away, the shooting started again. He himself lay beside a rubbish container whiles the shooting was going on. He said those shooting at them were many but amongst them he recognized A3, Ayoma and Moro Champong. Abudus he said were killing their people. Under cross-examination, the witness could not give an eye-witness account of the shooting and the killings he alleged. Asked who Abudus shot and killed, he could only say our people and based his specifics on hearsay. This witness did not appear before Wuaku Commission. But then the only reason why he implicated A3 in this matter is that He met A3, Ayoma and Imoro champing in a house on 25/03/02 when champing allegedly told or Warned him that they were going to kill all Andanis. This witness during period was either at work Or on his farm and was nowhere near the palace, the action spot. The witness thus saw. It is this same Witness who testified that at about 8.30pm on 26/03/02 he saw A8,the District chief Executive in the Company of some soldiers at his workplace. And after a chat with them, A8 left in his pajero car. This evidence of PW7 is in sharp contrast with that of PW8 who accompanied the DCE to Tamale to Ask for re-inforcement and returned to Yendi at 6.30pm and then parked his car at the police station. From there they went to the police headquarters and then to the military barracks and stayed there until 9.00pm. The witness has no credit to his name at all. A4 – Mohammed Abdulai @ samasama In the Bill of Indictment four witnesses were to give evidence against A4. But at the trial three of them gave evidence implicating him. They are PW3, Imrahama sayibu, Alhassan Yakubu PW4 and Iddrisu Mutawakilu, PW6. It is PW3’s evidence that when he climbed the wall of the katini and jumped outside he was shot by three people. He fell down and could not walk as his whole body was soaked in blood. Whiles lying down he saw A4 and A12 pulling the Ya-Na to where he was at close quarters but they did not see him. In fact he put the distance between them at 3 metres. According to him, the Ya-Na was not then dead. He went on to say that he saw kools with two lorry tyres,Leftee holding a gun, Mustapha holding a container and Yaan a camera. Zakaria Forest removed his machine from the neck, put it on the ground and sparked it. A4 held Ya-Na’s head and zakaria cut off the head with the machine. Zakaria Forest also cut the Ya-Na’s arm with the machine. A4 then took the head from which blood was dripping profusely. PW4 and PW6 also said they saw A4 and A12 dragged the Ya-Na to a spot. For once PW3’s evidence on an issue has been corroborated. But that is all there is to it. There are other evidence on record which discredits PW3’s evidence as a whole. Whiles PW4 and PW6 made this observation from their hideout beside the heap of firewood, PW3 observed the events in the open before he crawled across the street to join PW4, PW6 and others. Before this court, the evidence of PW4 suggest that at the time he saw Ya-Na being dragged by A4 and A12 he was already dead. This evidence fairly accords with the evidence of PW3 before Wuaku Commission that at the time he was fleeing the palace he saw the Ya-Na lying flat on his stomach with blood stains in his dress. So he could not tell whether he was dead or alive then. In this court, PW3 denied he gave any such evidence before the Commission. Again it appeared that at Wuaku Commission PW3 observed the scene with other colleagues and not alone as he wants the court to believe. And apart from PW3, the other witnesses did not observe the manner in which the Ya-Na was decapitated as he described. PW4 and PW6 only heard someone said "I am holding the hand of the Ya-Na. If you know that you are a man, come and collect it". And when they looked out they saw Yidana Sugri holding the hand". Before Wuaku Commission it was Yidana who took the arm but in court PW3 said A12 took it. PW3 also denied that he saw A4 and A12 carrying guns as attributed to him in the summary of evidence. I leave PW3 for a while. In the case of PW6, he made the observation of the scene of crime with five others. He never mentioned at Wuaku Commission that he saw A4 and A12 do anything at the scene. PW1 was also at the hideout but said nothing about A4 and A12. Again as between PW4 and PW6 there is no certainty about the dress of the Ya-Na that day. PW6 told this court that the Ya-Na wore a multi-coloured smock. But PW4 testified before Wuaku that the Ya-Na's dress was a short blue batakari. The question is, was the person PW4 and PW6 saw dragged to the spot Ya-Na or not? As I observed, if there were no inconsistencies in the evidence of the witnesses, there would have been no doubt about the case against A4. But as demonstrated, PW3's evidence that he laid just 3 metres from the scene but was not seen by the Abudus on a plain dry field is too sweet to believe. Also being in pain as a result of the gunshot wounds he sustained, his ability to observe accurately is suspect. Over and above PW3 having testified against Yidana Sugri and Iddrisu Gyamfo as the murderers of the Ya-Na, should he be believed eight years after the event that these accused are the culprits? The evidence of the three witnesses is inconsistent with their previous testimonies before the Wuaku Commission. They also contradict each other. A5 - Sayibu Mohammed In the summary evidence, PW3 Imrahama Sayibu was to say that on 26/03/02 when he took the satellite disc to Alhassan Andani in the palace, he saw a group of armed men including A3 (Achiri) and A5 (Sayibu Mohammed) shooting towards the palace. But at the trial PW3 denied he ever mentioned A5 in his statement. He also denied he was unable to identify A5 at the police headquarters. In the address of the prosecution, nothing was said about A5. At the Wuaku Commission A5 was found to have fought on the side of Abudus on the 26th and 27th and recommended that he be prosecuted for illegal possession of weapons. Since no evidence was given against A5 by any of the witnesses, it stands to reason that no attempt was made to prove the charge against A5. If PW3 said he did not mention A5 in his statement, how did he come to be indicted? A6 - Alhassan Braimah As stated in the summary of evidence, evidence against A6 was offered by PW6, Iddrisu Mutawakilu. The statement attributed to PW6 in the summary of evidence is that on 25/03/02 whiles sitting under a baobab tree, he saw Abudus shooting and burning houses. Amongst those burning houses were the Champong brothers namely Moro and Mohamadu. Those shooting towards the palace were Aja and Alhassan Braiamah @ Ton Kruma (A6). However in his evidence to the court, he said he was in the palace when he observed the burning of houses and the shooting. According to PW6, he saw A8 (DCE) in a bullet proof attire led an armour car on his motor-bike passed behind the Gbewaa palace towards the Bolin Lana's palace. Not long after, Abudus started shooting them with the type of guns used by the police and the military. Amongst those he recognized shooting towards the palace were A6 and Aja. However, the proceedings before the Wuaku Commission show that PW6 never mentioned A6. He similarly did not mention his name at the Yidana trial also. This evidence against A6 eight years after the event can only be described as an afterthought. A8 - Mohammed Habib Tijani This accused was the District Chief Executive of Yendi at the time and he is an Abudu. He is the most implicated in the crisis by his words and conduct, although the Report of the Wuaku Commission commended him. In this trial six witnesses namely PW1, PW2, PW5, PW6, PW7 and PW8 testified against him. In consonance with the abundance of evidence led against him, the address on him was given special attention by the D.P.P. As the head of the District Security Council (DISEC), A8 broke the decision to ban the celebration of the Bungum festival and the imposition of curfew on Yendi to the emissaries of the Ya-Na. It is the evidence of PW1 (Abukari Amadu) that the emissaries asked A8 to come to the palace and explain to the Ya-Na the reason for the imposition of the curfew. A8 agreed to come but he never came even after the Ya-Na had sent two invitations to him. Ya-Na had to send for the Regional Minister Prince Imoro Andani who denied knowledge of the imposition of the curfew. To satisfy the wish and pleasure of the Andanis, he lifted the curfew. PW1 also testified that one Mahama who was shot in the thigh was brought to the palace. The said Mahama informed the palace that whiles mending an armour car battery at the barracks, A8 remarked to an army commander that: "Up till now it is getting to 1.00pm and we have not come to execute our assignment". Whatever that assignment was, PW1 did not explain. PW1 further testified that on 24/03/02, he visited a friend in the Abudu area. He waited for the friend because he had gone to attend nature's call. Whiles waiting, he overheard a boy said: "Ya-Na was lucky today if it wasn't this festival we would have killed him". Another boy replied: "He is even not safe, they have been told by A8 that whether he accepted the curfew or not, they would kill him". PW1 said on hearing these statements, he left the house without seeing his friend. It would appear that although A8 in his capacity of the Chairman of DISEC conveyed the decision to impose the curfew he personally incurred the displeasure of the Andanis. Then contrary to the submission of the prosecution that the witnesses led direct primary evidence against the accused persons, this evidence led by PW1 against A8 are hearsay. They have no probative value in law. In any case before Wuaku Commission, PW1 as CW19 did not give any such evidence against A8. His evidence was confined to the imposition of the curfew, the lifting of the curfew, the assault on Ziblim, request by the Ya-Na for military intervention and escape from the palace to Tamale where he caused the arrest of Yidana. Why this evidence against A8, eight years down the line? The gist of the evidence of PW2 against A8 is that on 27/03/02 he carried the Ya-Na's distress message to A8 to order the military to come and rescue him. That was when the palace was ablaze and the firing had intensified. According to witness A8 told him plainly that the military will not go because when a curfew was imposed, the Andanis rejected it. A soldier he said ordered him to remove his talisman and then slapped him from behind and even insulted the Ya-Na as being stupid for not accepting the curfew. Not long after, a police officer and the Bunta Ya-Na arrived in a pick-up. The Bunta Ya-¬Na also put the Ya-Na's request for a rescue operation to A8. A8 gave the same negative response and again cited the refusal to accept the curfew as the reason. The Bunta Ya-Na was then ordered to sit down. When the firing stopped, PW2 said he heard jubilation and the unique sound of a drum. Then he heard A8 told a senior military officer "we have succeeded". PW2 explained the sound of the drum meant that the Ya¬-Na has been killed. Up to this point, PW2's evidence to the court accords with his testimony before the Wuaku Commission except in one respect. It is that PW2 did not tell the Commission that when he and Bunta Ya-Na delivered the Ya-Na's message to A8, he told them the soldiers won't move because they rejected the curfew when it was imposed. The further evidence of PW2 is that after A8 told the army officer that "we have succeeded", the army officer ordered the Bunta Ya-Na to join him in the armour car to go and bring the Ya-Na. But they came back with two young men, Alhassan Zakaria and Kwadwo Abia. When he enquired about the Ya-Na and his fathers, PW2 said the survivors told them they have been killed in the Sampa. I observed that PW4's evidence suggests that at the scene the time he saw the Ya-Na being dragged he was already dead. This hearsay evidence of PW2 is some corroboration of that evidence by PW4. On the comment attributed to A8 after hearing the unique sound of the drum, PW2 appeared to be a consistent witness but not on other issues. At the Wuaku Commission, he admitted police retrieved eight BB catridges and seven millimeter rounds of catridge from him. In his indirect evidence to this court he denied it. He told the court that at the palace, he took from his father a single-barrel gun to fight the Abudus. But then he denied there were guns in the palace. For his part PW5 said on a visit to the Yendi Government Hospital with other officials, A8 told him in Dagbon. "the arrogance that we have never allow us to listen to anybody's advice. That was the same arrogance the chief was having and he never listened to anybody's advice. That is why he was killed together with his elders". PW5 testified that he gave the same testimony at Wuaku Commission. But the truth is that as the 62nd witness, PW5 never mentioned A8 for once in his testimony. Even without determining whether this statement attributed to A8 is evidence of conspiracy to murder the Ya-Na, it is inconsistent with the previous statement to the Wuaku Commission. PW6 also said of A8 that on 26/03/02 in the morning, he saw A8 in a bullet proof dress on a motor-bike leading an armour car. There were six officers in the armour car and they passed behind the palace towards Abudu area. Not long after they turned, the attack on the Gbewaa palace started again. That is all the evidence of PW6 against A8 to the court. What took place for the three days was described as a three-day war. PW5 wore a talisman under his dress as a protection. PW9 told the court the Ya-Na himself did not only have protective powers but also magical powers to vanish. So what was unusual when A8 wore a bullet proof dress when he went about his duties during a war? At the Wuaku Commission, PW6 testified as CW17. In his long evidence in which he even accused the police of handing him over to his enemies (Abudus) he never mentioned A8. It is also questioned how PW6 could see the number of occupants of an armour car at a distance of 100 ft. This evidence of PW6 also contradicts the evidence of PW8 that on 26/03/02 when he got to the office in the morning, A8 was already in a meeting. This evidence against A8 cannot pass as a credible one. The same goes with the evidence of PW7 as compared to the evidence of PW8. PW7 is a night watchman. He said whiles on duty on 26/03/02 at about 8.30pm, a bus load of soldiers pulled up. Then also appeared A8 in his pajero. He heard the soldier asked A8 "have you killed the chief or taken him away from the house?" According to PW7, A8 answered they have done neither because there is tension and that is why he had come so that they go to town. Yet he said A8 alone left. The evidence of PW7 is a complete fabrication. There is evidence by PW8 that on 26/03/02, he and A14 Abukari Nabell @ Kunkakums @ Kums accompanied A8 to Tamale and returned to Yendi at about 6.30pm. A8 parked his pajero at the police station. A8 went into a meeting with some members of the DISEC and later proceeded to the military barracks. They remained there until after 9.00pm when he PW8 left for home. It is therefore very clear from the evidence of PW8 that A8 could not have been seen by PW7 at his duty post at the time he mentioned. PW7 is not a witness of truth against A8. Here is the evidence of PW8 I have been referring to. His evidence about A8 is both sweet and sour. At the time, PW8 was an accountant at the Assembly. He is also an Andani. He said that when he arrived at the office in the morning of 26/03/02, he saw A8 in a meeting. After 1.15pm that day, he accompanied A8 to the military barracks. An army officer they met complained that the armour car could not spark because of battery failure. They returned to the office where A8 instructed that the battery bought for the cesspit emptier be released to the soldiers for their use. Then A8 told him that they were going to Tamale. At the old market, they picked A14, an Abudu. A8 then told the two of them that he wanted them to be witnesses to his actions so that they can report to their various factions to avoid any allegations. On the way they met a military vehicle and A8 conversed with the occupant. He did not hear what they talked about. But then along the way, A8 looked at his wristwatch and remarked aloud that at exactly 4.00pm the Abudus and Andanis would clash at Yendi. He said he became alarmed. At Tamale they met the Regional Minister. A8 gave him a briefing on the security situation in Yendi and the need for reinforcement.Then the Regional Minister got the National Security Advisor Lt.-General Hamidu on the line. PW8 said he heard the Minister saying that he could not get back to the Gbewaa palace because he feared for his life. When A8 had the telephone receiver, he said the same thing to the National Security Advisor (NSA). Then A8 told the NSA that there is an Andani sympathizer in his company and he was handed the receiver.He informed the NSA that the Ya-Na was not safe. The NSA he said asked him to assure the Ya-Na that 60 military men will be flown from Accra to beef up the security and the curfew will be re-imposed. According to PW8, A8 blamed the Regional Minister for lifting the curfew. But the Regional Minister replied that the Abudus hooted at him. Witness also mentioned that when they went for afternoon prayers he saw that A8 and A14 wore bullet proof attires. Back in Yendi the BNI Director informed A8 that Abudus have besieged the palace and burnt houses around it. The BNI Director then suggested that they should ask the military to move the armour car around the palace so that by dawn the next day, they could get in and rescue the Ya-Na. But the army officer said he would not take instructions from anybody. At that juncture, A8 expressed concern about the welfare of his family. He was nearly slapped by an army officer when he also asked about the safety of the Ya-Na. It was at that point that PW8 left the company of A8 that day. But then the high point of PW8's long evidence is that responsible government officials and the security knowingly and deliberately refused to act when they should have acted to save the Ya-Na. This is because at the time, there were over 60 armed military men and over 100 policemen with an armour car and a police water can vehicle but none of them was deplored to save the Ya-Na. In the case of A8, PW8 said he played a partial role which benefitted the Abudu faction only. It is said this witness did not testify before the Wuaku Commission. He told this court that at the time he was not bothered about what happened. What made him bother now? His evidence however is not without doubt. The first is that A8 having told him and A14 that he was travelling with them as witnesses to his actions, for A8 to turn round to say that at 4.00pm the factions will clash is unthinkable. Again the evidence that the National Security Advisor told him the curfew will be re¬imposed cannot be true because the curfew was re-imposed a day before. Similarly, the National Security Advisor could not have given a message on security matters for the Ya¬Na through PW8. It is also not stated if A8 had the power to compel the military to move the armour car around in view of the stand taken by the army officer that he would not take instructions from anybody, especially so when there is bad blood between the Ya-Na and the security agencies. In any case all the security heads concerned in this matter, the Regional Minister, A8 as well as the National Security Advisor Lt-General Hamidu testified before the Wuaku Commission. None of them remotely alluded to this telephone conversation PW8 talked about in the Regional Minister's office. It is on record that the Wuaku Commission in its Report highly commended A8 “for all the frantic attempts he made to save the crisis and its escalation". The prosecution acknowledged this commendation in its address. It however was of the view that the Commission recommended the re-assignment of A8 because of his partial complicity in the events leading to the death of the Ya-Na. It is my contrary view that if the kind of evidence led against A8 by PW1, PW3, PW5, PW6 and PW7 in this court were led against A8 before the Commission and they were found credible and cogent the Commission would not have commended him so highly. But then as I have demonstrated the new evidence led against A8 by these same witnesses is contradictory of each other and do not prove the offence charged either. They are in short an afterthought type of evidence. I described the evidence about A8 as sweet and sour. By that I mean that the evidence in its raw form suggest that A8 could be found liable of the offence charge or he could be absolved of the charge. That is kind of evidence PW8 especially led. In the case of Kwesi vrs The Republic [1977] 1 GLR 448 at 451, the Supreme Court held that where in a trial the prosecution presented two alternative possible views of the facts one of which shows that the accused is innocent, the prosecution must fail". About thirteen years earlier than the Kwesi case (supra), the Supreme Court held in Dowuona vrs The State [1964] GLR 361 that "where the evidence before the court is circumstantial and the circumstantial evidence is consistent with guilt as well as with innocence, accused should be acquitted. That is the status of the evidence the prosecution led against A8 at the close of its case. A9 - Baba Ibrahim @ Baba Zey Evidence against A9 was given by PW4 Alhassan Yakubu @ Nat. He said when arrived at the palace on 26/03/02, he saw A9, Mahama @ Yellow and Adjuh, all from the Abudu gate shooting and killing their victims. At the time of the crisis witness was a student at the Yendi Secondary School. He went to school on 25/03/02 but did not return home because he was informed of fighting in town. He said he returned to the palace on 26/03/02 at 7.00am when he saw the three attacked the palace with the type of guns used by police and soldiers. Under cross-examination, he admitted that when he arrived there was calm and so he entered the palace through the main gate. But later when the fighting started again, he ran inside and hid himself in the house. This evidence of the witness is clear that he saw nobody fighting at the time he arrived at the palace and when he was in the palace on the 26/03/02. This evidence to the court aside, witness told the Wuaku Commission that when he went to school on 25/03/02 he did not come back until 27/03/02 at 6am instead of 6pm in his statement to the police. The witness therefore saw nothing because he was in school which is about 300 metres away from the palace for the three days. His evidence against A9 in court is false and inconsistent with his testimony before Wuaku Commission. A10 - Alhassan Mohammed @ Mohammed Champong PW6 Mutawakilu gave evidence that Moro Champong and Mohammed Champong, A10 herein burnt houses of Andanis under the control of the palace. At Wuaku PW6 did not mention the Champong brothers at all. Rather it was Nantogma Alhassan Andani CW21 (not called in this trial) who testified that one Iddrisu Gyamfo, an Andani who caused the fires around the Gbewaa palace. On his part, PW9 Mohammed Achana Ibdulahim @ Red accused A10, his brother and Alhassan Alhassan @ Baku of shooting at him on 27/03/02. He identified A10 in court as the only one present. In the summary evidence, PW9 was to testify that the persons named shot at him in turns when he came out of the palace. The same people, he is to say, fired in the direction of the Ya-Na. But when he ran towards the police station for protection one Yakubu Abudu shot him. In court however, all PW9 said on this issue is that A10, his brother Moro and Alhassan Baku shot him. At the Wuaku Commission, his evidence was that he escaped through the main gate of the palace. He ran towards the police station to surrender himself. On the way, Alhassan Alhassan @ Baku shot him. He showed gun wounds on his arm and stomach. But to this court he showed scars on the thighs and the buttocks as gunshot wounds sustained. The records of the Wuaku proceedings showed that a confrontation was even arranged between PW9 and this Alhassan Alhassan © Baku. The later denied the accusation by PW9 and pleaded alibi. The evidence of both PW6 and PW9 against A10 is not only inconsistent with their previous statement on the same issue at the Wuaku Commission but also unreliable. A11 - Mohammed Mustapha This accused is a petrol station attendant. In the Bill of Indictment PW3 and PW4 implicated him in their evidence on the role he played at the scene of the crime on 27/03/02. PW3 was to give evidence against A11 that when Ya-Na was dragged to a spot, he saw A11 holding a gallon of petrol. After A7 had cut off the head and the left arm of the Ya¬Na, Kums placed tyres on the body and A11poured petrol on the body and set the body ablaze. In his detailed evidence to the court, PW3 said at the time the Ya-Na was dragged to the spot, he was not dead. He saw Kools with two tyres and Leftee and A11 holding guns. But further on PW3 said A11 was holding a container and Kools put the tyres on the body. A11 then sprinkled petrol on the tyres. He said he saw the fire burning but did not know who lit it. Remember the witness said earlier that A11 lit the fire.For PW4, he was to say that at the spot the body was deposited, he saw Koomson a photographer and Mustapha brought a lorry tyre, put it on the body and poured petrol on it. Koomson he said, lit the fire. Note PW3 watched the scene at a closer distance than PW4. And in court PW4 said he saw Kooms put a lorry tyre on the Ya-Na. Then he saw someone holding petrol and poured it on the tyre and Kooms lit. He said now the chief was burning. PW4 has not mentioned in court that it was A11 who was holding petrol and poured it on the tyre as PW3 said. Whiles PW3 did not know at a close distance of 3 metres who lit the fire, PW4 said when the chief was burning, he saw A11 holding a gallon and pouring something like petrol on the burning body. What the evidence of PW3 and PW4 is offered to prove is that A11 brought a gallon of petrol which he poured on the lorry tyre(s) to burn the Ya-Na. But their evidence is fraught with differences although they watched the scene from almost the same location on a plain field. The difference may appear minor. But there are similar differences on the evidence of PW3 and PW4 implicating other accused persons. The cumulative effect of these differences is that the two witnesses are not reliable. A12 - Shani Imoro He is implicated by PW3 and PW6. Whiles PW3 said it was A2 and A12 who dragged the body of the Ya-Na to the spot, PW6 said A4 and A12 pulled the body to the spot. At the spot the Ya-Na was decapitated and burnt. PW3 said it was A12 who held down the head of the Ya-Na and A7 decapitated him. I have discussed the issue of the dragging of the Ya-Na whether dead or alive to the spot when considering the case against A2 and A4. What I have to stress again here is that before Wuaku PW6 never mentioned A4 and A12 as seen pulling the Ya-Na together. At Wuaku again, PW3 watched the scene of the crime in the company of five others from the same location. But from his evidence to the court, he watched the scene on the field alone before he crossed over to his colleagues hiding beside the heap of the firewood. Even PW6 said he saw Yidana Sugri dancing with the arm of the Ya-Na before he was dragged to the spot. The contradictions are too many on material issues. A13 - Yakubu Yussif @ Leftee PW3 Sayibu testified that at the spot of the Ya-Na was dragged to, he saw A13 holding a gun. Of all those who observed the scene, only PW3 mentioned A13. At Wuaku Commission A13 was not mentioned by any witness as having done anything during the crisis. But there was testimony by Isahaku Wumbei (CW35) the caretaker of Norrip Guest House that A13 was amongst family members and friends who sought refuge at his place between 20th to 29th March. He showed the list of names of some of the people he accommodated. There was some doubt about the genuiness of the name of A13 on the list - see pages 29 to 30 of Volume 2 of the Proceedings, Exhibit 1A. But the important point is that no allegation was made against him by any witness before the Commission. The defence has revealed and I checked from the record that when the accused were put before the District Court on 6/07/10 to be committed for trial, A13 was not listed and no allegation was made against him in the summary of evidence of the witnesses for the prosecution. When attention was drawn to it for which reason A13 should have been discharged, the prosecution asked for an adjournment. Following that a new bill of indictment was filed on 12/07/10 with this allegation by PW3 against A13. So far as this evidence is attributed to PW3, it is an afterthought. A14 - Hammed Abukari Yusif @ Kools Both PW3 and PW4 gave evidence that at the spot the Ya-Na was dragged to, they saw A14 put two lorry tyres on the body. PW3 gave the same evidence at the Wuaku Commission but PW4 never mentioned seeing A14 at the scene at all. Incidentally, PW1 and PW6 who also watched the scene from the same location as PW3 did not notice the presence of A14 at the spot. A15 - Abdul Razak Yussif @ Nyaa The accused is a photographer. PW3 and PW4 testified they saw A15 at the spot the Ya¬Na was pulled to. They said he took pictures. PW3 was specific that A2 and A4 took pictures with the head of the Ya-Na. At Wuaku PW3 said he saw two photographers at the scene. One of the photographers carried a camera and a cutlass, the other a camera only. PW4 also said before Wuaku that he saw photographers. None of the two witnesses told Wuaku that the photographers took pictures as they have told the court. At Wuaku, they mentioned the name of the photographers as A15 and one Jekii. The defence alleged in its address the said Jekii was found out to be an Andani, hence the failure of the witnesses to mention him in their evidence to the court. They denied they know anybody by that name at all. The effect of the denial is that the evidence of the witnesses against A15 in this trial is inconsistent with their testimony before the Wuaku Commission on the number of photographers they saw at the spot. But for now, the established evidence against A15 is that he was present at the spot the Ya-Na was decapitated and burnt. Whether he took pictures or not is not certain. The question is should his presence at the spot make him liable for the offence charged? Apart from PW3 and PW4 who saw A15 at the scene, PW1, PW5 and PW6 also saw the scene from the same location but did not mention A15. All along this has been trend of the evidence of the key witnesses. At no time was any two accounts on any issue testified on ever the same. Why should it be so? Testimony of PW10 - Brigadier Jaswant Mantey Wadhwani By way of reminder, the charge the accused face is conspiracy to murder and murder of the Ya-Na. To succeed the prosecution must prove each and every ingredient of each offence. In the charge of murder in particular, proof that the Ya-Na is indeed dead is very fundamental. The evidence of the prosecution witnesses who witnessed the decapitation and the burning of the body suggest that the Ya-Na is dead. From the evidence of the witnesses the Ya-Na was killed on 27/03/02. Since then nobody had heard of or seen the Ya-Na alive. It is over seven years now. The rebuttal presumption under s.33(1) of the Evidence Act (NRCD 323) is that the Ya-Na is dead. But then there is no presumption as to the time of death. But the death of the Ya-Na is not based on presumption but murder by the accused. PW9 said the Ya-Na is believed to have magical powers to vanish. PW4 said two survivors rescued from the palace told him the Ya-Na and his elders were short in the Sampa. Again PW4 and PW6 differed on the colour of the Ya-Na's dress that morning. With the burning of the body, the features of the Ya-Na have been disfigured. It is therefore not sufficient for the prosecution to prove that the Ya-Na is dead. In the circumstances of this case the prosecution must also prove that the charred remains collected and preserved in the mortuary of the Yendi Hospital is that of the Ya-Na and no other person. D/Inspector Adabla saw a body said to be Ya-Na burning. So his evidence on the identity of the body is not conclusive. PW10 as the pathologist examined the charred remains in order to determine the cause of death of the Ya-Na. PW10 tendered two autopsy reports. Exhibit A dated 3/04/02 is the Report On a Working Visit to the Yendi Government Hospital from 29th to 30th March 2002. On page 2 (two) of this Report is a subheading "Special Charred Remains of An Adult Male". PW10 wrote that these remains were yet to be identified. The second report, Exhibit B is dated 7/05/03 is captioned "Autopsy Report On The Charred Remains of An Adult Male". Therein PW10 wrote that the body (remains) was identified by Dr. Bernard Seshie as that of the King of Yendi, i.e. the Ya¬-Na. At the Wuaku Commission, PW10 tendered Exhibit A which he admitted was incomplete. Not surprisingly, the identity of the special charred remains PW10 examined became an issue. PW10 could not say positively that the charred remains were that of the Ya-Na. He said the remains were suspected to be body of the Ya-Na. So before Wuaku, apart from the absence of positive identification of the charred remains, witness could not tell the cause of death of the Ya-Na because the body was incomplete and charred, as such fine clues were missing. Witness told the court that Exhibit B was prepared for the purposes of Yidana trial. In Exhibit B he gave the cause of death of the charred remains without any further examination since he issued the first report. Yet again at the Yidana trial the issue of the identity of the charred remains surfaced. Again PW10 admitted that it is possible that the body identified to him by Dr. Seshie could be any one else - see Exhibit 4, Proceedings of 14/05/2003. It is on record that the Police Special Investigating Team (SIT) whose work was abated with the setting up of the Wuaku Commission took samples of the charred body including the bone and teeth and swabs from the sons of the Ya-Na for DNA (deoxyribonucleic acid) analysis with a view to establishing the identity of the charred body scientifically - see the Report, Exhibit Y at page 5. To date the DNA analysis has not been done. Incidentally PW10 said in this trial that the identification by Dr. Seshie was sufficient. Further on, the witness said the positive identification by a family member negated the need for a DNA examination of the remains. This evidence should not have come from PW10, professional as he is. When and where did a family member identify the remains to PW10 as that of the Ya¬Na? If he had that information, why did he not state so in Exhibit B and why did he describe the remains as that of an adult male and not by name? PW10 told the Wuaku Commission that little whisper here and there suggested that the remains might be the body of the Ya-Na. That is still the position as at today because the suspicion that the charred remains might be Ya-Na's body still holds sway. This is because the prosecution has failed to prove positively the identity of the charred remains as the body of the Ya-Na. Since the crisis ended on 27/03/02 the general public have painfully accepted the fact of the death of the Ya-Na. Nobody disputes that fact. But in law the fact of the death of the Ya-Na must be proved beyond reasonable doubt. However in the absence of a death certificate issued by PW10 and the identity of charred remains having not been positively established, the prosecution has failed to discharge the burden on it to the requisite degree. By that failure, the prosecution has sown the seed of doubt in its own case. The reason being that body whether dead or alive, which was seen dragged to a spot, decapitated and burnt, may or may not be that of the Ya¬-Na. The question which flows from that conclusion is if the prosecution has failed to prove that the charred remains is the body of the Ya-Na, could the accused especially A4, A11, A14 and A15 be liable on the charge of conspiracy to murder and murder of the Ya-¬Na? The answer appears to be obvious. PW11- D/Inspector Augustus Nkrumah (Investigator) In the address of the prosecution, it is submitted that in compliance with the government directive in the White Paper, the Police led by a very senior officer, conducted further investigations into the Yendi crisis, after which the accused are indicted before the court.PW11 is the lead investigator according to the prosecution. As part of the investigations, PW11 told the court he visited Yendi three times to view the state of the Gbewaa palace, he made arrests, invited witnesses to Accra and took their statements. What follows is these accused are arraigned before the court. This case has a background. It is the directive in the White Paper I referred to. The White Paper was based on the Report of the Wuaku Commission on the Yendi Crisis. And the root of all these is the proceedings of the Commission. And before the Wuaku Commission was set up the police administration initiated investigations into the crisis and submitted a report of their findings - Exhibit Y. Following the acceptance of the Commission's recommendations, Yidana Sugri and Iddrisu Gyamfo were prosecuted on the same charges as the present accused. They were acquitted and discharged - Exhibit 4. Surprisingly, PW11 told the court that he did not request for and read any of these documents which relate to the case he was investigating. According to him he only had a briefing by DCOP Ayalingo. I do not think the senior officer omitted or forgot to bring these matters to the notice of PW11 before or in the course of his work. Witness did not also contact PW12 D/Sgt. Adabla who did a very professional initial investigations into the crisis and compiled Exhibit Y. Investigation does not mean taking statements from suspects and charging them before the court. True investigations involves following clues and leads gathered from the statements of suspects and witnesses. In his book Criminal Procedure In Ghana, A.N.E. Amissah at pate 31 wrote on the object of investigations as follows:- "At the initial stages, the object of an investigation is not to prove a case against any particular person but to find out whether or not the complaint lodged can be substantiated and if so, how. Consequently, it is advisable that the police pursue all openings, leads and clues brought to their notice. Every person mentioned as having relevant information has to be checked. The aim should be to build up a complete case which cannot be upset by material within the possession of the police. If investigation leads to the conclusion that no offence has been committed or that an offence has been committed but not by the person suspected, the investigator should be bold enough to say so. The fact should not be forced to fit a preconceived notion". The investigator by his own evidence did not do anything beyond the taking of statements of suspects and witnesses. Admittedly the events he was to investigate took place about eight years ago. But he could have tendered the arms and ammunitions retrieved from Andanis who surrendered themselves, the burnt arms retrieve from the palace and the one from Ya-Na's own car. He did not say whether he made any efforts to retrieve the spear on which A1 allegedly held the head of the Ya-Na, the Dorman chainsaw machine used by A7, A15's camera and the pictures A4 and A12 were alleged to have taken with the head of the Ya-Na. Over and above, PW11 did not tell the court what happened to the charred remains suspected to be the body of the Ya-Na. In short PW11 did not build a case for s successful prosecution. If he did the identity of the charred remains will not be an issue for the third time in this trial. Just like PW12 D/Insp. Adaba who in an answer to the jury said he did not extend his investigation to the Abudu area, PW11 did not care to find any information from the Abudus. Inspite of the established evidence that the two sides fought a war which evidence at least PW4 and PW7 confirmed the investigations in all cases was one-sided. It is no wonder that self-confessed Andanis who took active part unlawful fight or war are the witnesses for the prosecution. The Yidana Sugri @ Red and Iddrisu Gyamfo Trial The two accused in that case were charged and tried on two counts of conspiracy to murder and the murder of Ya-Na. The accused herein face the same charges. PW1 Abukari Amadu, PW4 Alhassan Yakubu @ Nat and PW6 Iddrisu Mutawakilu gave evidence against the accused in that case. The two accused in that case were acquitted and discharged. The same persons have boldly given evidence against the accused herein on the same charges. If these witnesses are to be believed now, the logical conclusion one draws from their changed stance is that they falsely prosecuted Yidana Sugri and Iddrisu Gyamfo. And there is nothing to show that these very witnesses are not falsely prosecuting these accused too. Had the prosecution called witnesses different from those who testified in the Yidana case, on the assumption that these other witnesses were privy to facts which the Yidana witnesses were ignorant of, the prosecution's case would have sound more credible than it appears now. What these Andanis witnesses appear to be telling the whole world is that any Abudu is potentially liable for the murder of the Ya-Na. So are Abudus not being persecuted rather than prosecuted? Assessment of the Credibility of the Witnesses As a guide the Evidence Act, 1975 (NRCD 323) at s.80 listed some matters which are by no means exhaustive, to be considered in assessing the credibility of a witness. Both the prosecution and the defence discussed them in their submissions. I will not list them seriatim. The evidence of all the prosecution witnesses except PW11 and PW12 has fallen foul of the matters listed in there. As Andanis, they are no doubt biased and interested parties. They displayed individually and collectively inconsistency, dishonesty and untruthfulness in their evidence. As I have demonstrated above, the evidence of PW10 and PW11 as disinterested witnesses, did not cure those defects in the evidence of the Andani witnesses. The D.P.P. in her submission tried to distinguish between internal inconsistency in the evidence led as compared to an external evidence. This distinction is drawn in relation to the Wuaku Commission Proceedings and the Report thereon. But all the materials on the Wuaku Commission have been admitted as Exhibits. They therefore form part and parcel of evidence of the prosecution witnesses so far. That being so the inconsistency in the testimony of some of the witnesses at Wuaku and in this trial clearly undermines their credibility. Conclusion I must now decide on the submission made by the defence. I remind myself of the practice direction in the State vrs Ali Kassena (supra) that to uphold a submission that there is no case to answer by the accused, I must satisfy myself that (a) an essential element of the offence has not been proved, or (b) the evidence led in support of the charge has been so discredited as a result of cross-examination, or (c) the evidence led is so manifestly unreliable that no reasonable tribunal could safely convict on it. I also remind myself of the guide given by Lord Lane, C.J. in R vrs Galbraith (supra) quoted on page 17 of this ruling. It is also trite that the prosecution must establish a prima fade case against each of the accused before the court can demand an answer from the accused. And in determining whether a prima fade has been made, the court confines itself to the analysis of the evidence of the prosecution witnesses with regards to their credibility - Amakye vrs The Republic [1982/83]2 GLR 1010. So what the law requires is that the evidence led must be certain before the jury is asked to determine the fate of the accused. For in the Ali Kassena case, Crabbe JSC observed at page 154 that 'it is dangerous in jury trials to leave to the jury evidence which amounts to suspicion only as there is the fear that they may "put a multitude of suspicions together and make proof of it". It is equally unsafe to leave to the jury evidence which is fraught with inconsistencies and falsehood which abound in this case. And the law is that a witness whose evidence on oath is contradictory of a previous statement made by him whether sworn or unsworn, is not worthy of credit. Such evidence cannot be regarded to be of any importance in the light of the previous contradictory statement, unless the witness is able to give a reasonable explanation for the contradiction - see State vrs Otchere [1963] 2 GLR 463. Some of the witnesses it is recalled denied the testimony they made before the Wuaku Commission but the Principal State Attorney confirmed it. 5; In Mali vrs The State [1965] GLR 710, the Supreme Court held that: "where at the end of the prosecution's case, the court requires further evidence to enable it decide issues raised in the evidence given by the prosecution, then the irresistible inference is that the prosecution has not made out a case and accused should be acquitted". It appeared the prosecution foresaw this situation, hence its application for leave to re¬open its case to adduce further evidence. That application failed. The obvious conclusion to reach is that the prosecution has failed to establish a prima facie case against each and every one of the accused because: (a) the identity of the charred remains has not been proved positively as that of the Ya-Na. (b)the evidence against the accused apart from being inconsistent, has been discredited as a result of cross-examination and it is dangerous to leave such discredited and unreliable evidence to the jury. That being so, I hold that the accused herein have no case to answer. That means that the submission made on behalf of the accused is upheld,