Ocloo Vrs The Republic [2023] GHAHC 208 (17 March 2023)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE HO – VOLTA REGION A. D. 2023 CORAM: CHARITY A. ASEM (MRS), J. OCLOO DANIEL : APPELLANT SUIT NO. F23/23/2023 DATE: 17TH MARCH, 2023. VRS. THE REPUBLIC : RESPONDENT JUDGEMENT Appellant was charged with two Counts of Offences as follows; 1) Causing Unlawful Harm Contrary to Section 69 of the Criminal Offences Acts, 196, (Act 29) to Adi Seth and on Count 2 to Gbokpa Beauty on the 14/03/2021 by pouring acid on them. Accused when put before court pleaded guilty with explanation to the charge; and gave a long reason why the only thing he could use to defend himself when being beaten by the complainants was the acid. The trial court after listening to his story entered a plea of guilty for accused and proceeded to convict him and sentenced him as follows; “Considering the injury caused to the victims especially Adi Seth, the plea of leniency of accused person is rejected. To pour a chemical with corrosive effect on any human being is nothing but callous; as the accused himself told the court he is ordered to pay the medical expenses that will be incurred on the treatment of the victims in accordance with Section 148 Act 30, Accused person is ordered to also pay compensation of GHc1,000.00 to the victim Adi Seth and Ghc500.00 to victim Gbokpa Beauty forthwith. Accused is sentenced to ten (10) years imprisonment in hard labour on Count 1 and 5 years on Count 2. Both sentences were to run concurrently.” Now I noted from the record of appeal that the incident of pouring the acid on both victims happened at the same time. The prosecution ought to have presented only one count in respect of both victims. However, this anomaly has not occasioned any miscarriage of justice. The appellant upon securing the leave of this court has presented the instant appeal. His grounds of appeal are as stated in the notice filed on the 25/10/2022. 1. That the conviction and sentence was wrong in law in view of the defence of the appellant. 2. That the sentence was excessively harsh and severe (mitigation of sentence). In view of the fact that the appeal is against both conviction and sentence, it will be appropriate to state the facts of this case for its full effect. BRIEF FACTS Complainant, Nyadroh Yao, is a business man who lives at Hohoe whilst the Appellant is a Sanitation officer resident at Hohoe Zongo. The victim Adi Seth is a Motor Rider known as “Okada Rider” also resident at Hohoe. On 12th March 2012, the appellant hired the victim to send him from Hohoe to Kpando and back to Hohoe at a fee. When they returned from Kpando on same day the appellant asked the victim to come for his money the next day. On 14th March 2021 about 7.00am the victim went to the appellant’s house for his money but he refused to give the money to the victim. When victim insisted, he pays him his money, the appellant became offended, entered his room and fetched chemicals from a jerrican suspected to be acid. The appellant poured the suspected acid on the victim and another victim called Beauty Gbokpa who was also present at the scene. Both victims sustained injuries on their bodies and were rushed to Hohoe government hospital where they were admitted for treatment. Complainant with the help of others arrested the appellant and brought him to the police station with the jerrican containing the acidic chemicals. The appellant was rearrested by the police and detained for investigations. Police visited Hohoe government Hospital and met the victims on admission at the emergency ward receiving treatment and issued medical forms to them for the Medical Doctor’s endorsement. During investigation, the appellant admitted the offences in his cautioned statement and led police to his room at Hohoe Zongo to retrieve two jerricans and two gallons containing chemicals suspected to be acid. Police also retrieved the appellant’s late wife Vida Oklu’s folder from Donkorkrom Hospital which also shows that the deceased died from that same chemical poured on her by the appellant. After investigations the appellant was charged with the offence of causing unlawful harm and arraigned before the Circuit Court, Hohoe. On the 18/07/2021 accused pleaded guilty with explanation to the charges. This is what he said “when victim Adi Seth came to demand his fare, a misunderstanding ensued between me and victim and it resulted in fight. In the cause of the fight, Beauty Gbokpa and her brother came to help Adi Seth and they beat me. Some people came to separate us. As I was alone and helpless, I took some bio digester chemical in a gallon and splashed it around.” The issues for consideration has been set by Counsel for appellant and I proceed to deal with it as captured. Issue (1) whether the conviction and sentence was wrong in law in view of the defence of the appellant. Counsel for appellant in his submission stated that, though the accused pleaded guilty with explanation, the explanation given by the appellant was ambiguous or not clear and was suggestive of a defence and hence, the court ought to have entered a plea of not guilty and proceed to full hearing of the case. Thus failure on the part of the trial court occasioned a substantial miscarriage of justice. He explained that the explanation offered by the appellant was defence of self defence against the complainant and the others. The pertinent question herein is whether or not the explanation offered by the appellant amounted to a defence. In the case of Nokwe v. The Republic (1999-2000) GLR page 49, CA., the court decided that, “where however, the plea of guilty includes words of explanation which negates the plea of guilty by rendering it equivocal then he had within the terms of Section 171 (2) of the Criminal Procedure Code, 196 Act 30 given sufficient cause to the contrary. Also in the case of State v. Sowah & Essel (1961) 2 GLR page 743, the court amongst others stated that, the fundamental principle of law is that an accused is presumed to be innocent and where an accused pleads not guilty or guilty with explanation to the offence charged and the explanation if offered by the accused if proved will constitute a defence, the court shall presume that the accused is innocent and place the burden of proof on the prosecution to prove its case beyond reasonable doubt. With the above guidelines and case law reviewed; I proceed to examine the appeal as presented. (1) I have examined the words offered by the appellant when he pleaded guilty with explanation. The words did not constitute a defence nor ambiguous; nor the act done in self defence. From the explanation recorded by the trial judge, was the appellant in eminent danger? It is the view of the court that his explanation does not in any way negate the plea of guilty. According to appellant when a fight ensued between him and the victims, other persons came to help separate the fight. With the above explanation one may ask at what point did he become threatened so much so that he will need to defend himself by the use of a poisonous liquid and by pouring acid on the victims? Counsel has failed to justify the explanation per Section 31 of the Criminal Offences Act, Act 29(i). It is therefore the view of the court that the appellant acted without justification. An accused person can only take benefit under Section 52(b) of Act 29 when he is able to prove that he was justified in causing harm to another person and in so acting, acted in excess from a terror of immediate death or grievous harm which deprived him the power of self-control. The above provision and defence is only available for the offence of murder or man slaughter. Flowing from the view stated above this court is unable to find favour with appellant on the 1st ground of appeal, same is dismissed as I find no good compelling reason and grounds of law to disturb the conclusion reached by the learned trial circuit Judge. On ground 2 of the appeal; that the sentence was excessively harsh and severe (mitigation). The appellant was charged with causing unlawful harm Contrary to Section 69 of Act 29. It is a second Degree felony. Now the maxim punishment for an offence of 2nd Degree felony is 10 years IHL. The trial court decided to punish the appellant by handing down the maxim punishment because he saw at first hand the injuries sustained by the two victims when appellant bathed them with acid; thus describing his conduct as callous. Counsel for appellant argued that though accused was not known to have committed similar offence the prosecution made a case of his late wife, having died under similar circumstance as such which weighted on the mind of the trial judge. I have perused carefully the appeal record and my learned younger brother’s decision. Nowhere in the judgment did he take the said issue to account in sentencing the appellant. Now the 10 years IHL was within the scope of the law and the trial judge acted within his powers in sentencing the appellant to the term aforesaid. It is the view of this court however that, no amount of compensation can erase the disfigurement the two victims have suffered as a result of the callousness of the appellant herein. This may have weighted heavily on the trial court to apply the maximum punishment on the appellant herein. Appeal is by way of rehearing and upon review of the record, appellant is entitled to reduction in sentence. However, having come holding the feet of the throne and invoking the judicial mercy before the court I am of the view that however revulsive the offence may be the appellant deserves some reduction. In so doing I take the following into account which I believe should have weighed on my brother not to completely reject his plea for some mercy. From the record of appeal; 1) The appellant had no record of similar crime in nature. 2) The appellant is said to have taken care of the hospital bills of the victims and same compensation awarded by the trial court. 3) I also take into consideration the extreme congestions in our nation’s prisons with its attendant burden on the nation’s already weak purse with no end in sight. I am of the view that the appellant must be punished to reflect the crime he committed but also serve his term and come out to assist his family as he claimed. In view of the above position therefore, the second ground of the appeal succeeds to that extent; and I hereby review the sentence of 10 years IHL on count 1 to 5 years imprisonment. On Count 2 to 3 years IHL. Sentences are to run concurrently starting from 18/03/2021. (SGD.) CHARITY A. ASEM (MRS.) (JUSTICE OF THE HIGH COURT) PARTIES; Appellant – Present. Respondent – Attorney General – Present. LEGAL REPRESENTATION Godwin Kpoble for the Appellant. Elorm Fugah for the Republic – Present. jd* 7