Introduction
In the realm of criminal jurisprudence, the final written address of learned counsel emerges as the consummate shield – meticulously forged to safeguard the accused’s inviolable presumption of innocence. It is here that Defence Counsel weaves the facts, testimonies, evidence, and law into a tapestry of persuasion, designed to move the judicial mind toward the only just conclusion: acquittal and discharge. On July 13, 2026, ahead of the High Court’s delivery of judgment in The Republic v. Bernard Antwi Boasiako @ Wontumi and 2 Others case, learned counsel Samuel Atta Akyea of Zoe, Akyea & Co. submitted a comprehensive written address on behalf of the 1st Accused (Bernard Antwi Boasiako, alias Chairman Wontumi) and the 3rd Accused (Akonta Mining Company Limited).
This fourth installment of The Law 101 on the subject examines the core issues, some of the specific factual evidence, and the legal authorities relied upon by the Defence to argue for the acquittal of A1 and A3.
Key issues set down for determination
The written address submitted on behalf of A1 and A3 framed the entire trial around three major legal and factual controversies:
- The preliminary constitutional issue: Whether Sections 14(1) and 99(2)(b) of the Minerals and Mining Act, 2006 (Act 703), as amended by Act 995, violate the principle of legality under Article 19(11) of the 1992 Constitution for vagueness and overbreadth, requiring a mandatory reference to the Supreme Court under Article 130(2).
- The assignment issue (Counts 1 & 3): Whether permitting a third party to enter a concession for land reclamation and coconut planting constitutes a “transfer, assignment, mortgage, encumbrance, or dealing” in a mineral right without written ministerial approval under Section 14(1) of Act 703.
- The facilitation issue (Counts 4 & 6): Whether A1 and A3 acted with the requisite criminal intention (mens rea) to purposely facilitate an unlicensed mining operation under Section 99(2) (b) of Act 703.
Issue 1: Constitutional validity & void-for-vagueness
- Defence arguments & factual foundation
The Defence argued that Section 99(2)(b) is a default penalty provision lacking an underlying substantive offence definition. They submitted that Section 14(1) imposes negative duties on individuals while simultaneously creating procedural duties for the Minister, leaving the phrase “otherwise encumbered or dealt in” unconstitutionally broad.
- Authorities relied upon
To urge the High Court to stay judgment and refer the matter to the Supreme Court under Article 130(2), the Defence cited Article 19(11) of the 1992 Constitution:
“No person shall be convicted of a criminal offence unless the offence is defined and the penalty for it is prescribed in a written law.”
The Defence relied on Debrah v. The Republic [1991] 2 GLR 517, where Justice Acquah observed:
“It is indeed a fundamental right of every individual that he shall not be punished for any offences which had not been clearly set out and the punishment thereon equally laid down… The individual is entitled to know beforehand what the offence is and the punishment for it.”
In reinforcing the “void-for-vagueness” doctrine under Ghanaian jurisprudence, counsel cited Tsatsu Tsikata v. The Republic [2003-2004] SCGLR 1068 (per Modibo Ocran JSC):
“We therefore hold that the void-for-vagueness doctrine represents a legitimate standard under the 1992 Constitution for the judicial review of legislation.”
Counsel also quoted Mark Darlington Osae v. Food and Drugs Authority and Attorney-General (2024) (per Ackah-Yensu JSC):
“…a law is unconstitutionally vague when people of common intelligence must necessarily guess at its meaning… This is better captured in the words of famous French Scholar Baron De Montesquieu in his ‘Spirit of Laws’ that laws be concise, simple, and devoid of ‘vague expressions’.”
Issue 2: Offence of assignment without approval (Counts 1 & 3)
- Facts and evidential gaps identified
The Defence established that Akonta Mining Company Limited (A3) holds a valid 10-year mining lease over the Samreboi concession (Exhibit G). However, counsel pointed out that A1 personally holds no mineral rights.
To counter the claim that A1 assigned mineral rights to Henry Okum (PW2), the Defence emphasised the testimony of Prosecution Witness 1 (Michael Gyadu Ayisi), who admitted under cross-examination on January 12 and 13, 2026, that he did not know A1 personally and was employed solely by PW2:
“Q: Do you know A1?
A: I do not know him personally, but I have seen him on television… but I do not have any physical interactions or engagement with him.”
Q: Would I be correct in suggesting that, the activities on the site which you were part and supervised were all activities for and on behalf of Henry Okum who is your boss?
A: That is so.”
Furthermore, the Defence highlighted that PW2 admitted he had no corporate link to A3:
“Q: Are you a staff of Akonta Mining?
A: No, my lady, I am not.
Q: Are you a Director of Akonta Mining?
A: No, my lady, I am not.
Q: Are you a shareholder of Akonta Mining?
A: No, my lady, I am not.”
2. Legal authorities & application of ejusdem generis
The Defence contended that under the doctrine of ejusdem generis, the general phrase “otherwise encumbered or dealt in” under Section 14(1) must be restricted to proprietary transactions of the same class as “transfer, assignment, or mortgage”. Citing Timber and Transport Sawmilling Co., Ltd. v. Kataban Timbers Co. Ltd [1975] 2 GLR 62:
“The words ‘assignment, sub-demise, mortgage or surrender’ appearing in Act 124, s. 13 (1) should be read ejusdem generis.”
Counsel argued that granting PW2 permission to enter land to reclaim pits is a bare licence, relying on Dasi Akakpo & Anor. v. Ben Johnson & Anor. (1999):
“A licence is a permission given by owner of land or of an interest in land which allowed the licensee to do certain acts in relation to the land which would without the permission, amount to a trespass. A licence strictly speaking, does not create or confer interest in land.”
To shield A1 from personal liability for corporate acts, counsel cited Section 147(1) of the Companies Act, 2019 (Act 992) and Dalex Finance v. Ebenezer Denzel Amanor (2021). Addressing the statutory presumption under Section 107(1)(a) of Act 703, counsel invoked the lex posterior derogat priori rule (Magna International Transport Ltd), asserting that Act 992 (enacted in 2019) supersedes earlier corporate liability provisions. On piercing the veil, counsel cited Kwabena Duffour & Others v. The Republic (2023) quoting Sophia Akuffo JSC in Morkor v. Kuma (No. 1):
“The corporate barrier between a company and the persons who constitute or run it may be breached only under certain circumstances… where it is shown that the company was established to further fraudulent activities, or to avoid contractual liability.”
Issue 3: Offence of purposeful facilitation (Counts 4 & 6)
- Facts and evidence of lack of intent
The Defence maintained that A1 and A3 lacked the criminal intent (mens rea) to facilitate illegal mining. In his caution statement (Exhibit C), A1 stated that his arrangement with PW2 was strictly for land reclamation and planting coconut trees.
To demonstrate that A1 actively opposed illegal mining, the Defence relied on official complaints written by A3 to the Western Regional Security Council (REGSEC) dated April 19, 2021 (Exhibit 4) and April 8, 2024 (Exhibit 9), requesting state intervention to clear illegal miners from Samreboi.
PW2 confirmed this intervention under cross-examination:
“Q: When Chairman wrote that letter, did REGSEC come to the site to sack them?
A: Yes, they came, led by the Regional Commander of Tarkwa to drive everybody on the land away and they seized every excavator that was working there.”
Additionally, Former Western Regional Minister Hon. Kwabena Okyere Darko-Mensah (DW4) submitted video evidence (Exhibit 16) and documents detailing the government’s National Alternative Employment and Livelihood Programme (NAELP), demonstrating that land reclamation was an encouraged public policy. Assembly Member Evans Addae (DW5) testified that illegal mining had persisted in the area since 2011 without A3’s authorisation and that he had never seen A1 on the concession.
2. Legal authorities on abetment & mens rea
Counsel argued that abetment requires proof of a specific guilty mind coinciding with the act. Citing The Republic v. Philip Assibit Abuga Pele (2018), quoting Prof. Henrietta Mensa-Bonsu:
“The crime of abetment is committed when a person renders assistance to another for the purpose of committing crime, and thereby makes a contribution to the doing of a criminal act. FACILITATE: The ordinary meaning of this word is ‘to make easy’.”
On the mandatory requirement to prove specific purpose, counsel cited Edward Kotey Alias Nii Quaye v. The Republic (2023) (per Ackaah-Boafo JSC):
“…for the prosecution to have proved its case against the Appellant, it had to establish that the Appellant shared the mens rea of the offence with the 1st Accused… Under this subsection, a person cannot be held to have intended to aid the commission of a crime unless he was conscious that his act was likely to lead to the commission of the alleged crime.”
Standard of proof and the three-tier test
The defence reminded the court that the burden of proof rests entirely on the Prosecution under Sections 10, 11(2), and 13(1) of the Evidence Act, 1975 (NRCD 323). Citing Ekow Russell v. The Republic [2017-2020] SCGLR 469 (per Akamba JSC):
“…our criminal justice system is premised upon the principle that it is better for ninety-nine criminals to go away scot free, than for one innocent person to be wrongly incarcerated or jailed.”
Counsel urged the court to evaluate the defence using the established three-tier test in Lutterodt v. COP [1963] 2 GLR 429 and Akilu v. The Republic [2017-18] 1 SCGLR 444:
- First Tier: Is the explanation of the defendant acceptable? If so, acquit.
- Second Tier: If the explanation is disbelieved, is it nevertheless reasonably probable? If so, acquit.
- Third Tier: On the totality of the evidence (prosecution and defence together), is guilt established beyond a reasonable doubt? If not, acquit.
Conclusion & prayers sought
In conclusion, Counsel Samuel Atta Akyea prayed the High Court for a primary order staying judgment and referring the constitutional questions under Article 130(2) to the Supreme Court. In the alternative, the Defence requested an absolute acquittal and discharge for Bernard Antwi Boasiako (A1) and Akonta Mining Company Limited (A3) on Counts 1, 3, 4, and 6 due to the prosecution’s failure to meet the statutory standard of proof beyond a reasonable doubt.
You may read earlier instalments of this article from the links below:
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DISCLAIMER: The Views, Comments, Opinions, Contributions and Statements made by Readers and Contributors on this platform do not necessarily represent the views or policy of Multimedia Group Limited.
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