ACCRA - A.D 2017
THE REPUBLIC - (Respondent)

DATE:  30TH MARCH, 2017


This is an appeal against the decision of the High Court, Accra dated 12th day of January, 2016 overruling a submission of no case before the court. It must be stated that the Attorney General’s Department was not represented. Although served with the written submissions of appellant they failed to file an answer. Nonetheless, we shall proceed to hear the appeal without their input.


The appellant, in this interlocutory appeal is a businessman, who was arrested and charged with operating an illegal communication system without lawful authority contrary to Section 73(1) (B) of Act 775 of 2008. Appellant was also charged with possessing one sim box device with 16 slotted sim cards and accessories. He pleaded not guilty to the charges and the prosecution was therefore bound to call witnesses in proof of the charges according to law.


Consequently, the prosecution called a number of policemen who effected his arrest. They also collected a statement from the appellant. At the close of the case for the prosecution, counsel for appellant made a submission of no case on his behalf, but this was overruled and the trial proceeded to its conclusion and accused sentenced accordingly. It is this refusal which led to the present appeal. The grounds of appeal which can be found at page 256 of the record are as follows:


a. The ruling of the court delivered on 12th January, 2016 was against the weight of the evidence.

b. The judge misapplied the principle of circumstantial evidence in her analysis of the submission of no case and this has occasioned a miscarriage of justice.

c. The judge erred in finding that there were electronic communications in her ruling.


At this stage of the trial it is the duty of the court to call upon an accused to open his defence, if in the view of the trial judge there is sufficient evidence in support of the charge. See the case of State vrs Ali Kasena [1962] GLR 44, SC, where it was held that “a submission that there is no case to answer may properly be made;


a. When there has been no evidence to prove an essential element of the alleged offence, and

b. When the evidence adduced by the prosecution has been discredited as a result of cross-examination or is so manifestly unreliable, that no reasonable tribunal will simply convict on it”.


Justice Brobbey in his book “The Essentials of Ghana law of Evidence” at page 55 states:


“The law is well-settled that at the end of the case for the prosecution, only a prima facie case can be made against the accused”.


This principle was well articulated in the case of The State vrs Sowah & Essel [1961] GLR 743 where it was held at page 745 that “it is wrong therefore to presume the guilt of an accused merely from the facts proved by the prosecution. The case for the prosecution provides prima facie evidence from which guilt of the accused may be presumed, and which therefore calls for an explanation by the accused”. It is not the duty here to determine the guilt or otherwise of the accused.


The burden has shifted to the appellant to show to the court why the ruling of the trial court should be set aside. In this instant case, the arresting officers told the court that with the help of a tracking device, they traced the instruments used for the illegal operation to the room of appellant. The evidence also shows that the tracking device can only trace the location of the equipments when they are in operation. In the room of appellant, they found three boys, namely Edmund Ekow Essilifie, Emmanuel Essilifie and Kweku Appiah in the house of [applicant] at A9, Manet Cottage, Accra. The sim box together with the accessories and sim cards were taken and identified by an expert as a machine used for such illegal purposes.


Accused upon his arrest admitted in a statement to the police dated 19th January 2015 that he is the owner of the equipment which he ordered from a company called China Skyline based in Hong Kong, for financial gain due to the economic climate of the country at the time. The statement was written by himself, in his own handwriting and duly signed by him and this was tendered as part of the prosecution’s case. Indeed the said statement properly speaking is a confession statement which incriminates the appellant.


It is no wonder therefore that the trial judge in the ruling found that the evidence put together formed “a veritable prima facie case against the accused” as a result of which she called upon the appellant to open his defence in accordance with law.


In our view, the evidence assembled by the prosecution is not fanciful but real and sufficient to support the ruling of the trial judge. Moreover, the record bears testimony to the fact that appellant sought to repudiate the confession statement but the trial judge patiently conducted a mini trial to determine the admissibility of the said statement.


An appellate court will only interfere with the decision of the trial court when there are sufficient grounds to do so i.e. if the trial court fails to act judiciously, or acted capriciously or did not take into account relevant matters. We find no such grounds in the appeal now before us to justify our interference with the decision of the trial court. See the case of (1) Crentsil vrs Crentsil [1962] 2 GLR 171 and (2) Amoah vrs Lokko Alfred Quartey [2011] SCGLR which although decisions in civil cases, aptly apply in criminal cases as well. There is clear evidence that the trial judge acted within the ambit of the law in dismissing the submission of no case. He was right therefore in calling the appellant to open his defence and we therefore dismiss this interlocutory appeal.


Further, the trial has concluded and appellant sentenced. This appeal is therefore misconceived and equally lacks merit and must be dismissed.


The appeal is therefore dismissed.



P. K. Gyaesayor

(Justice of Appeal)



Aduama Osei, JA                   I agree                 K. N. Aduama Osei

(Justice of Appeal)



Lovelace-Johnson, JA         I agree A.                 Lovelace-Johnson

(Justice of Appeal)