The Criminal Division of the Accra High Court has ordered the former National Chairman of the National Democratic Congress (NDC), Samuel Ofosu Ampofo and Anthony Kwaku Boahen to open their defence. Anthony Kwaku Boahen was a deputy Communication Director of the NDC.
The order follows a dismissal of No Case to answer an application filed by Ofosu Ampofo and Kwaku Boahen yesterday.
The court, presided over by a Supreme Court Justice, with an additional responsibility of the High Court, His Lordship Samuel K.A. Asiedu, said its decision was based on the evidence before it, as well as the charges that the accused persons are facing.
The two accused persons were arraigned in 2019 after a leaked audio tape went viral where they were alleged to have outlined some activities aimed at causing mayhem.
His Lordship said: The accused persons have been charged with the offence of conspiracy to cause harm, contrary to sections 23(1) and 69 of the Criminal Offences Act, 1960, (Act 29), as amended.
This charge appears in count one of the charge sheet. The 1st accused has also been charged, in count two, with the offence of assault on public officer, contrary to section 205(a) of the Criminal Offences Act, 1960, (Act 29).
Likewise, the 2nd accused has also been charged, in count three, with the offence of assault on public officer, contrary to section 205(a) of the Criminal Offences Act, 1960, (Act 29).
The Prosecution called three witnesses in all to give evidence towards the proof of the various charges leveled against the accused persons and then announced the closure of its case.
On the 2nd day of November, 2022 Counsel for the accused persons, each filed a submission of No Case to answer and invited the court to acquit and discharge the accused persons of the various charges, since in their view, the charges leveled against the accused persons have not been proved by the prosecution. On the contrary, the prosecution maintains, in its response, that enough evidence had been led to prove the charges leveled against the accused persons.
Section 173 of the Criminal and Other Offences (Procedure) Act, 1960, (Act 30), states the circumstances under which a submission of No Case to Answer may be appropriately made and sustained by the court in a summary trial.
The section provides that: Section 173. Acquittal of accused with 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 the accused to make a defence, the court shall, as to that particular charge, acquit the accused.
This section has been the subject of various judicial pronouncements in a number of cases which have sought to espouse on the meaning of section 173 of Act 30 and generally, on the concept of Submission of No Case to Answer.
The State vs. Ali Kassena
In the famous case of The State vs. Ali Kassena  1 GLR 144, the Supreme Court, at page 148, adopted the position of the law that: “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 is so manifestly unreliable that no reasonable tribunal could safely convict upon it.
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.
Apaloo vs. The Republic
In Apaloo vs. The Republic  1 GLR 156, the Court of Appeal, speaking through Azu Crabbe CJ, relied on the decision of the Supreme Court as stated in the Ali Kassena case when it held at page 175 that: “There has recently sprung up the practice by some Counsels to make a submission of no case to answer in the teeth of direct cogent evidence implicating the accused in the crime charged. This invariably delays the dispatch of work in the criminal courts, and this court now considers it necessary to re-state the tests for making a submission of no case.
“The circumstances in which a submission of no case may successfully be made are: (a) when there has been no evidence to prove an essential element in the crime charged; and (b) when the evidence adduced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict upon.”
In the recent case of Asamoah and Another vs. The Republic [2017-2018] 1 SCLRG 486, the Supreme Court, speaking through Sophia Adinyira JSC, re-stated the law on submission of no case to answer when it observed at page 493 that: 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 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.”
The court has examined the evidence which have been placed before it by the prosecution vis-d-vis the charges which the accused persons are facing and the court has come to a conclusion that there is evidence on record in respect of the charges brought up against the accused persons.
This is not the stage for the court to review the evidence and make pronouncement as to the guilt or innocence of the accused persons.
The court is satisfied that given the evidence before it, it is fit and proper that the accused persons be called to enter upon their defence. In this regard the court adopts the statement of the law espoused in Asamoah and Another vs. The Republic (supra) to the effect that:
“There is no rule of law or procedure which gives an accused person the automatic right to make a submission of no case to answer at the close of the prosecution’s case in a criminal trial.
“In a summary trial, it is at the discretion of the Judge to determine whether or not a prima facie case had been made out against the accused person, having regard to the evidence adduced.
Where there is cogent evidence against the accused a trial Judge did not have to waste time inviting counsel for the accused to make a submission of no case…An appellate court only has to ascertain whether at the close of evidence in support of the charge, a case was made out against the accused sufficiently to require him to open his defence.
Furthermore, the standard of proof the prosecution bears at the stage of the trial before the appellants open their defence, is not proof beyond a reasonable doubt. See Tsatsu Tsikata v The Republic [2003-2004] SCGLR 1068.
For the above reasons, the submission of no case to answer is hereby overruled. The accused persons shall open their defence accordingly.
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