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Criminal law - Conspiracy to
commit crime - S23(1) of the
Criminal Offences Act 1960, Act
29 - S3(1) of the Electronic
Communication Act 2008, Act 775
- Whether an
appellants can open their
defence when no case was
established by the Prosecution
against them -
HEADNOTES
On the 27th of June,
2013 personnel from the CID
Headquarters Accra, in
collaboration with officials of
the Telecom Service Providers
embarked on an operation to
clamp down on the activities of
illegal SIM box operators. The
operation led to the arrest of
the first Appellants Michael
Asamoah, (1st Appellant),
who the police have monitored
for some time as one of the
operators of SIM box fraud. Upon
his arrest, the team escorted
the 1st Appellant to
a shop at Abossey Okai where the
alleged illegal activities take
place. The shop was forced open
and five GOIP SIM box equipments
and its accessories, four heavy
duty batteries, three UPS and
one power inverter were found.
The equipments had been
activated and running to
terminate international calls.
The first Appellant disclosed
that the SIM boxes and other
equipments and accessories
belong to Anthony Ogunsawo (2ndAppellant)
a Nigerian resident in Madina,
Accra. Investigations revealed
that the 2nd Appellant
engaged the services of the 1stAppellant
and he installed the internet
link which facilitates the
termination of calls by the SIM
boxes -
HELD :-
The case for the prosecution in
our opinion provides a prima
facie evidence of the commission
of the offences charged.
Accordingly we conclude that the
Appellants have a case to answer
in respect of all the three
counts. The appeal is therefore
dismissed. The judgment of the
Court of Appeal is hereby
upheld.
STATUTES
REFERRED TO IN JUDGMENT
Criminal Offences Act 1960, Act
29 and S3(1)
Electronic Communication Act
2008, Act 775,
CASES REFERRED TO IN JUDGMENT
R v P (MB) [1994] 1 SCR 555 Canadian
The State v Ali Kassena (1962)1
GLR 144
Apaloo v The Republic [1975]
1GLR 156 C.A
Gyabaah v The Republic
[1984-86] 2GLR 461 C.A.
Kofi Buffalo v The Republic
[1987-88] 1 GLR 250
Moshie Alias Adama v The
Republic [1977] 1 GLR 186-190
Tsatsu Tsikata v The Republic
[2003-2004] SCGLR 1068.
Apaloo v The Republic [1975]
1GLR 156 C.A.
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING
JUDGMENT
ADINYIRA (MRS), JSC:
COUNSEL.
AUGUSTINE OBOUR FOR THE
APPELLANT.
EVELYN KEELSON, CHIEF STATE
ATTORNEY FOR THE RESPONDENT.
J U D G M E N T
ADINYIRA (MRS), JSC:-
Your ladyship and your
Lordships permit me to preface
my opinion with the dictum of
Lamer CJ in the Canadian case of
R v P (MB) [1994] 1 SCR 555
on submission of no case:
“Perhaps the single most
important organizing principle
in criminal law is the right of
the accused not to be forced
into assisting in his or her own
prosecution. This means, in
effect, that an accused is under
no obligation to respond until
the state has succeeded in
making out a prima facie case
against him or her.”
This case came before us by way
of an appeal from the judgment
of the Court of Appeal delivered
on14 July 2016 in which the
Court of Appeal affirmed the
decision of the High Court
(Financial Division One) Accra
to call upon the Appellants to
open their defence after the
close of prosecution’s case.
BRIEF FACTS
On the 27th of June,
2013 personnel from the CID
Headquarters Accra, in
collaboration with officials of
the Telecom Service Providers
embarked on an operation to
clamp down on the activities of
illegal SIM box operators. The
operation led to the arrest of
the first Appellants Michael
Asamoah, (1st
Appellant), who the police have
monitored for some time as one
of the operators of SIM box
fraud.
Upon his arrest, the team
escorted the 1st
Appellant to a shop at Abossey
Okai where the alleged illegal
activities take place. The shop
was forced open and five GOIP
SIM box equipments and its
accessories, four heavy duty
batteries, three UPS and one
power inverter were found. The
equipments had been activated
and running to terminate
international calls. The first
Appellant disclosed that the SIM
boxes and other equipments and
accessories belong to Anthony
Ogunsawo (2nd
Appellant) a Nigerian resident
in Madina, Accra. Investigations
revealed that the 2nd
Appellant engaged the services
of the 1st Appellant
and he installed the internet
link which facilitates the
termination of calls by the SIM
boxes.
Upon his arrest, the 2nd
Appellants disclosed that the
illegal SIM box was initiated by
himself and two others at large,
namely Zimi and Forster. And he
engaged the 1st
Appellant to render technical
services and manage the
operations of the SIM box.
The 2nd Appellant
disclosed that he received
payment from his principals in
the U.S.A. ranging from $20,000
to $30,000 on monthly basis. Out
of these payments, he paid the
f1st Appellant an
amount of USD 2,800 depending on
the internet services he
provided; and an amount of USD
560 per month for the management
of the SIM boxes.
Based upon these facts the
Appellants were arraigned before
the High Court on three counts
of:
1.
Conspiracy to commit crime
namely, providing electronic
communication service without
licence contrary to S23(1) of
the Criminal Offences Act 1960,
Act 29 and S3(1) of the
Electronic
Communication Act 2008, Act
775,
2.
Providing electronic
communication service without
licence contrary to S3(1) and
S73 (1) of Act 775
3.
Knowingly obstructing and
interfering with the sending,
transmission, delivery and
reception of communication
contrary to S73 (1) (e) of Act
775
The prosecution called 3
witnesses and at the close of
the prosecution’s case the
learned trial judge invited the
Appellants to enter their
defence to the charges against
them.
The Appellants being
dissatisfied with the
decision
of the trial court appealed to
the Court of Appeal but the
appeal was dismissed. Therefore,
the Appellants filed this
instant appeal on one ground of
appeal, namely:
The Court of Appeal
erred when it affirmed the
decision of the trial Judge
inviting the Appellants to open
their defence when no case was
established by the Prosecution
against them.
The relevant sections of the
statutes contrary to which the
Appellants were charged are set
out as follows:
S23 (1) of Act 29: Conspiracy
Where two or more persons
agree to act together with a
common purpose for or in
committing or abetting a
criminal offence, whether with
or without a previous concert or
deliberation, each of them
commits a conspiracy to commit
or abet the criminal offence.
S3 (1) of Act 775: Requirement
for a licence for public
electronic communications
service
Except as otherwise provided
under this Act a person shall
not operate a public electronic
communications service or
network or provide a voice
telephony service without a
licence granted by the
Authority.
S73 (1) (e) of Act 775: Offences
A person who knowingly
obstructs or interferes with the
sending, transmission, delivery
or reception of communication,
commits an offence and is liable
on summary conviction to a fine
of not more than three thousand
penalty units or to a term of
imprisonment of not more than
five years or to both.
.
Case for the Appellants
Counsel submits that the
trial judge has a duty to
ascertain from the evidence
whether a prima facie case has
been made against the accused.
He contends that the essential
ingredients of the offences
charged against the Appellants
have not been established by the
prosecution. Thus the Court of
Appeal erred in affirming the
trial judge’s warrant calling on
the appellants to open their
defence. Counsel submits further
that the issue as to whether or
not there is no evidence to
establish the guilt of the
accused is a question of law and
the trial judge is duty bound to
consider it even if no
‘submission of no case’ is made
by the defence. The Appellants
also complained that the trial
judge did not give an
opportunity for them to make a
submission of no case to answer,
though they did not raise it as
a ground of appeal. A number of
authorities were cited by
Counsel in support of his
submissions. The State v Ali
Kassena (1962)1 GLR 144;
Apaloo v The Republic [1975]
1GLR 156 C.A; Gyabaah v The
Republic [1984-86] 2GLR 461
C.A. Kofi Buffalo v The
Republic [1987-88] 1 GLR 250;
Moshie Alias Adama v The
Republic [1977] 1 GLR 186-190
Case for the Respondent
The respondent agrees with
the Appellant on the
circumstances under which a
submission of no case to answer
may be upheld as held in the
Ali Kassena, supra and
Gyabaah, supra. But as
regards the standard of proof,
the Respondent argues that it
cannot be proof beyond a
reasonable doubt in a submission
of no case, as held in the case
of Tsatsu Tsikata v The
Republic [2003-2004] SCGLR 1068.
The Respondent contends that at
this stage, the issue is whether
the prosecution has made out a
sufficient case to warrant the
calling on appellants to open
their defence. The Respondent
went through the evidence of
three prosecution witnesses to
demonstrate that the prosecution
at the close of its case had led
sufficient evidence to establish
a prima facie for the Appellants
to be called upon to answer.
Consideration of the Ground of
Appeal as to whether the Trial
Judge Erred in Calling Upon the
Appellants to Open Their Defence
at the Close of the
Prosecution’s Case
The Law on Submission of
no Case
Though the principle of
‘submission of no case to
answer’ is a time honored
practice, it is governed by
statute; the Criminal and Other
Offences (Procedure) Act, 1960
(Act 30). In summary trials, it
is governed by sections 173 and
174 (1) of the Act 30 while in
trials on indictment, it is by
section 271.Since this is a
summary trial our concern is
with Sections 173 and 174 (1)
of Act 30 which provide:
Sections 173 Acquittal of
accused when no case to answer
“Where at the close of the
evidence in support of the
charge, it appears to the Court
that a case is not made out
against the accused sufficiently
to require him to make a
defence, the Court shall, as to
that particular charge, acquit
him
Section 174 The defence
(1)
At the close of the
evidence in support of the
charge, if it appears to the
Court that a case is made out
against the accused sufficiently
to require the accused to make a
defence, the Court shall call on
the accused to make the defence
and shall remind him the accused
of the charge and inform the
accused of the right of the
accused to give evidence
personally on oath or to make a
statement.
The underlying factor behind the
principle of submission of no
case to answer is that an
accused should be relieved of
the responsibility of defending
himself when there is no
evidence upon which he may be
convicted. The grounds under
which a trial court may uphold a
submission of no case as
enunciated in many landmark
cases whether under a summary
trial or trial by indictment may
be restated as follows:
a)
there had been no evidence
to prove an essential element in
the crime;
b)
the evidence adduced by
the prosecution had been so
discredited as a result of
cross-examination; or
c)
The evidence was so
manifestly unreliable that no
reasonable tribunal could safely
convict upon it.
d)
The evidence was evenly
balanced in the sense that it
was susceptible to two likely
explanations, one consistent
with guilt, and one with
innocence.
See Tsatsu Tsikata v The
Republic [2003-2004] SCGLR; Kofi
alias Buffalo v The Republic
[1987-88] 1 GLR 250; Gyabaah v
The Republic [1984-86] 461 C.A
Moshie Alias Adama v The
Republic [1977] 1 GLR 186-190;
Apaloo v The Republic [1975]
1GLR 156 C.A.
In the course of his
written submission Counsel for
the Appellants complained the
trial judge erred by not giving
him a chance to make a
submission of no case; this
statement cannot pass without
any comment.
There is no statutory
provision or any hard and fast
rule of procedure that an
accused person has an automatic
right to make a submission of no
case through his counsel at the
close of the prosecution’s case.
In terms of summary trials,
where either Sections 173 or
174(1) of Act 30 is applicable
as the circumstances may be, the
accused does not have a right to
make a submission of no case
because in such cases, the judge
is the trier of both law and
facts and it is in the
discretion of the trial judge to
decide, based on the evidence
adduced by the prosecution,
whether or not the evidence is
sufficient to make out a prima
facie case for the defence to
answer. In the teeth of direct
cogent evidence implicating an
accused in the crime charged, a
trial judge should not waste
time to invite a counsel to make
a submission of no case.
Furthermore the standard of
proof borne by the prosecution
at this stage cannot be proof
beyond a reasonable doubt, as
held in the case of Tsatsu
Tsikata v The Republic
[2003-2004] SCGLR 1068.
Counsel cannot use the
trial judge’s failure to invite
him to make a submission of no
case to as a ground to anchor
his appeal. What is essential on
appeal is for the appellate
court to ascertain whether at
the close of the evidence in
support of the charge a case was
made out against the Appellants
sufficiently to require the
Appellants to make a defence.
This is exactly what their
lordships at the appellate court
set out to do.
We wish to refrain from
commenting on the evidence led
so far by the prosecution as the
issue of whether the court
believes the evidence led does
not arise at this stage as the
case is not yet concluded.
However, it is legitimate to
comment that anyone looking at
the evidence cannot deny that
the evidence led so far links
the 1st and 2nd
Appellants to the offences for
which they have been charged.
The evidence led by the
prosecution witnesses, PW1, PW2,
and PW3 shows that the
Appellants were in possession of
five GOIP SIM box equipments and
accessories, 80 sim cards, four
heavy duty batteries, three UPS
and one power inverter in a shop
at Abossey Okai. The 1st
appellant was running the
equipments on behalf of the 2nd
Appellant. He worked under the
instructions of the second
Appellant and received
remuneration for such services.
These exhibits can hardly be
believed to be for private use.
These boxes are devises used to
bypass international call and
terminating them in Ghana as
local calls and thereby deprive
the government of Ghana tariffs
chargeable on international
calls .It was also testified
that upon inspection the
equipments were found to be
active and running at the time
they were seized with 80 sim
cards inserted in them. There
was also evidence that the
Appellants were not licensed by
the National Communication
Authority [NCA] to bring in
international traffic.
We will refer in
particular to the evidence of
Ogunkole Michael, PW2, and Fraud
Manager at GLO Mobile Ltd. who
testified that the SIM boxes
were being used for the bypass
of international traffic on GLO
network. He said there was an
on-going forensic analysis of
all data traffic on GLO network
to identify abnormal pattern;
and through that they were able
to identify those sim cards
involved in illegal abnormal
traffic. Those sim cards were
traced to the location where
they were recovered from the
shop at Abossey Okai. He said
during cross-examination that he
can vouch that the SIM boxes
that were seized from the
Appellant were being used for
the bypass of international
traffic on the GLO network. He
also said there is a record of
each of the transaction
detailing the location of the
base station or the mast where
the traffic is coming from. It
is based on this information
that the police traced and
arrested the Appellants.
The case for the
prosecution in our opinion
provides a prima facie evidence
of the commission of the
offences charged. Accordingly we
conclude that the Appellants
have a case to answer in respect
of all the three counts.
The appeal is therefore
dismissed. The judgment of the
Court of Appeal is hereby upheld
S. O. A. ADINYIRA (MRS)
(JUSTICE OF
THE SUPREME COURT)
V.
J. M DOTSE
(JUSTICE OF
THE SUPREME COURT)
P. BAFFOE-BONNIE
(JUSTICE OF
THE SUPREME COURT)
N.
S. GBADEGBE
(JUSTICE OF
THE SUPREME COURT)
V. AKOTO-BAMFO (MRS)
(JUSTICE OF THE
SUPREME COURT)
COUNSEL
AUGUSTINE OBOUR FOR THE
APPELLANT.
EVELYN KEELSON, CHIEF STATE
ATTORNEY FOR THE RESPONDENT. |
