ARMAH VRS REPUBLIC (H2/8/2023) [2023] GHACA 202 (13 July 2023)

IN THE SUPERIOUR COURT OF JUDICATURE IN THE COURT OF APPEAL ACCRA - GHANA CORAM: BARTELS-KODW0, J. A (Presiding) NOBLE NKRUMAH, J. A CHRIS ARCHER, J. A Suit No.: H2/8/2023 13TH JULY, 2023 DANIEL NII ARDAY ARMAH @ AMINU LION APPELLANT VRS THE REPUBLIC RESPONDENT J U D G M E N T BARTELS-KODWO (MRS.) JA: The Appellant is a convict who as the 2nd Accused person at the trial court was on the 8th of December, 2014 convicted and sentenced by the Circuit Court to 15 years IHL on count one and 25 years IHL on count two for the offences of conspiracy to commit robbery and robbery contrary to s. 23 (1) and 149 of the Criminal Offences Act, 1960 (Act 29). The Charge Sheet can be found on pages 38 and 39 of the Record of Appeal (ROA). The Appellant had earlier into his conviction and sentence appealed to the High Court Koforidua on 15th March, 2017 praying for the mitigation of the sentence on the following grounds; a. The Appellant regrets his action and it is out of deep remorse that he is praying for mitigation of sentence. b. The Appellant is a first offender who has learnt his lessons the hard way in prison, hence his plea for a reduction of sentence. c. The Appellant vows to turn over a new leaf and to keep away from all forms of crime in the future. d. The Appellant has a wife and children of school going age, who have dropped out of school because of his incarceration, hence this plea for reduction of sentence. (See, ROA 37). The Appellate High Court however gave judgment on the 14th of November, 2017 dismissing the appeal among other reasons that “the Appellant had to embark on another criminal expedition culminating in his arrest is a clear indication that he is not remorseful” ROA 48. Learned Counsel for the Appellant submits that based upon the devastation of the High Court decision on appeal the Appellant sought for extension of time from the Court of Appeal and same was granted on 14th February, 2022. The Appellant is by this appeal seeking for a reduction of his 25 year sentence which obviously is for mitigation yet the ground of appeal is that “the Judgment cannot be supported having regard to the evidence on record” which suggests he is against the conviction. The brief facts of the matter are found on the ROA page 40. The complainant one Dr. Robert Darko Osei and his family were on the 12th of September, 2008 attacked at 1: 30 a.m. his house was broken into and they were robbed by six men, two of whom were masked. They entered all the seven rooms of the complainant and in the course of the robbery shot the complainant in his right thigh. Various items including cash, 4 mobile phones, two wedding rings a wallet with some money, a Compaq lab top and pen drive were taken away by the robbers. Later Solomon Doudu now a convict who offered one of the stolen phones for sale was arrested and he mentioned convict Eric Cobbinah and Kingsley Amankwah as his source of supply. Upon their arrest Kingsley Amankwah also mentioned the other members of their gang as Ato Kwamina alias Skin Wood and Daniel Addey Armah alias Aminu Lion. Daniel Armah, the Appellant, however escaped and was at large till the Police later arrested him in upon a tip off in August. In arguing the grounds of appeal, learned counsel for the Appellant on the ground that the judgment cannot be supported having regard to the evidence on record submitted that the Appellate High Court judge was biased in his judgment when at Page 48 of the ROA he stated that “this court might have taken a lenient view of this appeal but for the fact that thereafter, the appellant had to embark on another criminal expedition culminating in his arrest, is a clear indication that he is not remorseful.” This is because the judge came to this conclusion based on the unsubstantiated facts given by the prosecution which suggested he committed another crime during which he was arrested. He also submitted that the prosecution misled the court someone was shot when the evidence before the court and the particulars of offence did not point to any such incident. He argued that the Appellant had not been charged with any crime before or after his conviction and was a first time offender so the presentation of facts by the prosecution only served to prejudice the trial circuit judge in giving a high sentence of 25 years. There again he never left the prison after his conviction yet the Appellate Judge concluded he was arrested when he was on another criminal expedition. Learned Counsel for the Appellant cited the case of AMZAT BELLO V COP (Practice Note) [1961] GLR 573 where the Supreme Court per Vanlare JSC stated that “A previous conviction to be taken into consideration in passing sentence is one in which the sentence imposed has been served, and after which the person has been subsequently convicted, but not, as in the instant case, where the appellant is still serving the alleged previous conviction and the offence was not committed after serving the earlier sentence.” Counsel also referred to the case of COP V MARBOAH (Practice Note)[1962] 2 GLR 159 and AFOTEY V THE REPUBLIC [1984-86] 1 GLR 477 where the courts warned against the use of previous convictions as part of the case of the prosecution to prejudice a trial court. In the Afotey case for instance the Appellate Court set aside the conviction and sentence of the Appellant under those circumstances. In this instant case counsel for the Appellant submitted that the appellate High Court delivered its ruling without even recourse to the judgment of the trial Circuit Court. He relied only on its proceedings. Even though the Circuit court stated at page 35 of the ROA that its judgment was read in open court it was not part of the record of the court. Appeals being matters of rehearing as laid down by law and supported by decided cases like TUAKWA V BOSOM [2001-2002] SCGLR 61, OPPONG V ANARFI [2011] 1 SCGLR 556-558 and KWA KAKRABA V KWESI BO [2012] 2 SCGLR 834 learned counsel urged this court to take a second look at the matter and consider whether the Appellate High Court was right in dismissing the Appeal by way of a rehearing as was expected of it. Whether it went by the tenets established in the Tuakwa case? That is to say did it comb the entire record, witness statements, documents, exhibits, evidence and cross- examinations etc to satisfy itself that the Prosecution had made a case against the accused person beyond reasonable doubt deserving of his conviction? As it were, did it put itself in the place of the trial court to consider all that was before the trial court in coming to its decision to dismiss the appeal? Learned counsel for the Appellant submitted that the Appellant stayed in prison custody for three years before filing his appeal and stated he was remorseful and had learnt his lesson the hard way therefore was pleading to be dealt with leniently yet the appellate high court would hear none of that on the basis of a strange reason. He referred to the Supreme Court case of KAMIL V THE REPUBLIC, CA NO. J3/3/2009 dated 8th December, 2010 where one of the reasons given for incarceration is to reform prisoners hence in counsel’s view if a prisoner upon sober reflection prays to be given a second chance because he is reformed so that he becomes more useful to his family and society the door of second opportunity should not be shut in his face. The prosecution in its written submission states that the Appellant’s ground of appeal which is at page 50 of the ROA is that ‘the judgment cannot be supported having regard to the evidence on record’ which suggests he is seeking to attack his conviction but with regard to the relief he seeks, being that his sentence be reduced coupled with his written submission of 8th March, 2023, it is clear that he seeks a mitigation of the sentence imposed by the trial Circuit Court which was affirmed by the Appellate High Court consequently the prosecution dwelt on the mitigation of the sentence. He submitted that the offence of robbery as found under a.149 of Act 646, the Criminal Code (Amendment) Act makes one liable to a minimum prison term of ten years upon conviction for robbery and not less than fifteen years if the crime was committed with the use of an offensive weapon. Therefore in Prosecution’s view the learned trial judge’s imposition of 25 years IHL was proper and well within the statutory limit. Hence there was no reason necessitating a reduction or mitigation of same. The prosecution relied on the case of KWASHIE V THE REPUBLIC 1972 1 GLR 488 at 493 where it was held that, “determining the length of sentence, the factors which the trial judge is entitled to consider are: (1) the intrinsic seriousness of the offence; (2) the degree of revulsion felt by law- abiding citizens of the society for the particular crime; (3) the premeditation with which the criminal plan was executed; (4) the prevalence of the crime within the particular locality where the offence took place, or in the country generally; (5) the sudden increase in the incidence of the particular crime; and (6) mitigating or aggravating circumstances such as extreme youth, good character and the violent manner in which the offence was committed.” The Prosecution also relied on the case of ADU –BOAHEN V THE REPUBLIC 1972 GLR 70-78 where it was held as follows; “Where the court finds an offence to be very grave, it must not only impose a punitive sentence, but also a deterrent or exemplary one so as to indicate the disapproval of society of that offence. Once the court decides to impose a deterrent sentence, the good record of the accused is irrelevant” hence the Ibrahim Kamil case supra which gives the fivefold reasons for sentencing, namely, ‘to be punitive, calculated to deter others, to reform the offender, to appease society and to be a safeguard to this country’. In their view therefore the trial judge was rather lenient in his imposition of a twenty five year sentence. Prosecution says this is so because PW1’s evidence shows his father who was mentioned in the facts attached to the charge sheet was shot in the thigh. This means the use of fire arms was involved in the robbery. From the evidence of PW4 it is also clear that the Appellant could not be tried alongside his accomplices because he went into hiding and they were given sentences of 65 years IHL therefore the Appellant’s 25 years is quite lenient. Thus the High Court rightly observed that the robbery was committed with an offensive weapon and the 15 and 25 year sentences imposed were well within legal limits. The Prosecution is of the firm opinion that this sentence does not need any mitigation by way of reduction. They relied on the Supreme Court case of FRIMPONG alias IBOMAN V THE REPUBLIC [2012] SCGLR 297 in which the court held that the remission to be benefited by the appellant ought to be considered in the reduction of sentence. There the court considered the fact that though the robbery was violent in nature no one was injured or harmed unlike the instant case where it was violent and someone got hurt so the sentence should be left untouched else it will not serve as a deterrent to anyone. As stated already appeals are by way of rehearing which means the appellate court has to put itself in the stead of the trial court and look at all the evidence before it to decide whether the appeal stands or fails. There are myriad case law which support this. See AWUAH V ADUTUTU [1987-1988] 2 GLR 191 CA; ABBEY V ANTWI [2010] SCGLR 17 and many more. In this matter though the ground of appeal is that “the Judgment cannot be supported having regard to the evidence on record” suggesting the Appellant is out to attack his conviction even the relief sought is for the reduction of his 25 year sentence. It is therefore not surprising that the prosecution in its submission concentrates on the mitigation of the sentence and has no problem with the conviction. This court is however mandated in the interest of justice to look at all the evidence before it in considering this appeal. The Appellant states boldly that at the appellate High Court the court did not have the benefit of the trial Circuit court judgment yet the appellate High Court went ahead to deliver its judgment. Indeed the appellate High Court at pages 43 and44 of the ROA admitted the judgment was unavailable and it was adjourning the case to enable same to be procured so it could give its judgment. The question is was it ever made available? At page 35 of the ROA it is stated as follows by the trial Circuit Court; BY COURT - Judgment read in open court. Accused convicted on counts 1 and 2……. A2 is sentenced to 15yrs IHL on count 1 and 25 years IHL on Count 2. All the sentences are to run concurrently. However a thorough combing of the ROA with a legal mine sweeper does not bring up this judgment anywhere in the Record of Appeal. Indeed on the 10th of May, 2017 the Appellate High court at page 42 of the ROA did admit that the proceedings before it “did not include the judgment of the trial court”. The court adjourned the matter for a couple of times for this judgment to be procured and from all indications available on record apparently went on to deliver its judgment without the Judgment of the trial court. What then is the effect of the lack of this judgment in the records of the High Court working as an appellate court within the ambit of the law? We will come back to this shortly. We now proceed to look at the evidence at the trial Circuit court. PW1, the son of the complainant, told the court how he saw two masked men attack their household and pull guns on him, he also heard shouts from his father’s room that someone wanted to kill him so people should come to the rescue. He said he could describe them by height. Later the shouts stopped and the two left. His father came out and thy noticed he had a bullet wound in the thigh. When A2, Appellant herein, cross-examined PW1said he did not know him and had not seen him in his house. The question then is why his prosecution in the face of such evidence? PW2 said he knew the accused persons though they were not his friends. He said A2 lived in Kasoa. He said the accused persons belonged to a gang in the area and the police were after them but they escaped. He denied having clashed over a lady, Akai, who is his wife, with A2. Under cross-examination when it was put to him that he did not have anything to show that the accused persons robbed the complainant, he said that was incorrect however, he did not proffer any such evidence. What then shows that the appellant is a member of the gang the police were after? What is the evidence implicating him as a member of that gang that committed the robbery in issue? With regard to PW3 he told the trial court that he has known A2 since 2002 in the area where he lived. He said in 2008 an incident occurred and police were looking for the accused persons who were on the ran. He said under cross-examination he did not work for the police and he did not know who the police were looking for to arrest. He denied that he and A2 have had a clash over a girl called Akai and that was the reason why he was testifying against the accused. PW4, the investigator, told the court that when a mobile phone was retrieved from a witness in the case one Alhaji was arrested and he mentioned the name of Kingsley Amankwah alias Spider who also mentioned the names of others who had been arrested in 2008 and sentenced to 65 years as well as the names of A1, Ato Kwamina aka Skin Wood and A2 Daniel Arday Armah. He tendered their Caution statements as Exhibit B and C. This court is bewildered that these statements do not also feature in the ROA. PW4 told the court that the accused persons denied the offence as well as knowing each other. He said he had a picture of the two of them with another who was arrested earlier called Peacemaker. He tendered a picture of them as Exhibit D which did not also feature in this Appeal record. He told the court that A2 pleaded alibi that he was in Suhum and he investigated this which he found to be false. He tendered A2’s charge statement Exhibit E which incidentally is also not part of the ROA. Under cross-examination he said in investigating the alibi of the appellant he went to meet the secretary Appiah, one Kwasi Oil, a past trustee and one member Obala Mohammed all of the GPRTU. When he was however asked who the accused told him to consult on his alibi he mentioned the name of A2’s car owner Kwesi Afurokese and the Chairman of the GPRTU but told the court he did not meet any of these two. The question then is how did he investigate the alibi to arrive at the conclusion that the alibi was false? He denied that he relied on speculation and hearsay evidence to put the accused before court. It is his case that no weapon was found on the accused persons. When asked how the picture Exhibit D was taken he said through their investigations. He denied that it was the crime officer who took it. He also denied it was taken in 2012 and not 2008. He also denied it was taken to frame them and maintained they were culpable for the offences charged. This Exhibit also does not form part of the ROA. It turned out the accused persons intended to file a submission of case but did not do so by the due date of 7-4-14 given them by the court so on 23-04-14 the court stated it had examined the case and was of the view that the accused persons should open their defence and were so ordered to do. A1 in his evidence denied knowing A2. He said he was injured in his right arm and was at home sleeping and was arrested by police and beaten up which resulted in him suffering a leg fracture. His mother was also arrested and later released. He denied knowing any of the people the prosecution mentioned. He said he was in custody when A2 was brought in. He said he was innocent of the crime and was away in Nigeria between 19th February, 2008 and 23rd February, 2010 and so was not in Ghana in 2008 when this crime was allegedly committed. The picture Exhibit D he said was taken in 2012 at the police station by the investigator and crime officer after his arrest. Under cross-examination he denied he knew PW2 personally but knew him as an informant. He denied he was also called Skinwood or sported dreadlocks at the time the picture was taken. He denied he was arrested in connection with another robbery case. He denied hiding in Oblogo after the first robbery in 2008 and being a land guard. He said he did not know Oblogo. He denied knowing A2 or any other members of an alleged gang. DW1 (A1)’s brother Pastor Kelvin Mensah’s testimony was that he lived in Nigeria since 2006 and his brother AI lived with him sometime in 2007 till December, 2010 when he returned to Ghana but he later came home in 2011 only to learn of his arrest. When he was shown the picture Exhibit D, he said even though the person in the picture with dreadlocks had similarities to his brother he knew his brother was clean shaven without dreadlocks. He maintained that in 2008 his brother lived with him in Nigeria. The Appellant (A2 in the trial court) denied the charges for which he was in court. He said his arrest was caused by a man with whom he fought over a woman and he had not robbed anybody. He says at the time of the robbery he was in Suhum driving and he told the police about it but they failed to do anything about it, in other words he offered an alibi which was not determined or established otherwise. He also denied knowing Kingsley Amankwah who mentioned his name to the police as one of the robbers. He was adamant he never joined any gang to rob the complainant on the night of 12th September, 2008. The wife of the Appellant, DW2 told the court her husband was not a criminal and that one Adzah who had clashed over a woman with him promised to teach him a lesson hence he took the police to arrest him. When it was put to her that whereas she told the court that her husband’s car owner lived at Kade and this was contrary to what he said that he lived in Suhum she said he was rather correct. She denied not being a witness of truth. This ended the trial and Judgment according to page 35 of the ROA was delivered in open court. This judgment however does not feature as part of the record of proceedings. It also did not feature in the proceedings at the appellate High court and that court took note of it as can be seen at page 43 and 44 of the ROA. Is the fact that, even though the appellant filed the ground of appeal that “the Judgment cannot be supported having regard to the evidence on record” which meant he was against his conviction but however seemed to have abandoned it and only went on with his plea for a mitigation of the sentence because he was now reformed prevent us as an appellate court bar us from dealing with the issue of his conviction in the light of the evidence adduced, which it appears does not link or connect him to the crime in issue? We will answer and think not that it does preclude us from looking at ALL the evidence before us. An appellate court is expected to do just that in the interest of justice. This is so because for the prosecution to have secured a conviction it must be based on all the evidence before the trial court. So we are entitled to look at all the evidence and see whether the conviction and its subsequent sentence pass the litmus test. The prosecution never brought A2’s accuser who pointed him out to be one of their gang to face him in the trial to determine whether he was one of the gang and that he knew the other gang members for real who had already incarcerated. The prosecution witness mentioned one Kingsley Amankwah who mentioned A2 as one of the gang. He was already serving a 65 year sentence according to the prosecution. It was well within the capacity of the police to bring him to court and use him as one of the witnesses who was a member of the gang and was arrested to come and face A2. He was a vital witness for the prosecution’s case to be watertight. The appellant as A2 alleges an alibi but as can be seen from the evidence it was never properly investigated since the police never got to his car owner to ascertain his whereabouts on the night of the robbery. He denies knowing A1 who also says they only met in custody. On the issue of Exhibit D the picture which is not even available to us to make anything out of it, there is however controversy when exactly it was taken whether in 2008 or in 2012 and the purpose thereof. The major concern for us is also the absence from the ROA of the judgment of the trial circuit court which convicted and sentenced the 2nd accused person now appellant. It did not even feature in the first appellate court. What is the effect of that appeal which upheld a judgment it did not have access to and this appeal for mitigation so to speak by the appellant when the evidence seems to point out that there was little or no evidence in the proceedings before the trial court which established beyond reasonable doubt that he was a member of the robbery gang on that night. It appears it is the word of the prosecution against him. In any event there is no roadmap of the trial court judgment to point out why he was convicted. It is not for child’s play to earn a conviction, guilt must be established obtained beyond reasonable doubt. We do not see that that end has been achieved here based on the evidence adduced. In the light of this do we set aside the conviction altogether or because he dwelt on the mitigation of his sentence we ignore the lapses in the case of the prosecution and maintain the conviction and reduce his sentence? Is this an appellate dilemma? If the others were given 65 years considering that robbery is such a serious crime and these other members of the gang had nothing to lose why did the prosecution not make it part of their case by putting them before the trial court to establish their case more conclusively and beyond reasonable doubt? In criminal jurisprudence the law urges us to let 99 people walk free rather than deny an innocent person of his freedom. Does this case fit the size? We are of the firm opinion that from the evidence led at the trial court resulting in the conviction and sentencing of A2 coupled with the first appellate court upholding the sentence and as it were the conviction as well as the absence of any reasoned judgment showing why this appellant before us was convicted and sentenced, this case fits into the category of cases were guilt was not established beyond any reasonable doubt to earn a conviction how much more a sentence. From the evidence on record the Accused person had sought to file a submission of no case at the trial court but come the day they were to have filed same that had not been done so the court asked them to open their defence. Perhaps if that had been done we would not here. In sum it is our view that the Appellant’s conviction on the evidence before us per the Record of Appeal even without the judgment appears to have been done in error as same is not supported by the evidence on record. That being the case he ought NOT to have been convicted. One would ask if the prosecution were so sure he was involved in the robbery in issue and the others were sentenced to 65 years considering the seriousness of such crimes why did they not get the trial judge to treat him in an equal manner with his accomplices? We are of the view that the first trial appellate court erred in upholding the conviction and even sentencing because even without the judgment of the trial court it had the full evidence of the whole trial before it to come to its own conclusions. It is unfortunate the earlier appellate court failed to set things right. This legal titan sank even before it set sail to leave the harbor for its destination. To deny a person of his freedom for any length of time must be done with the least doubt in mind. In this case there are more questions than answers and no certainty that the appellant took part in the robbery in issue. Though he seems to be praying for mitigation never once did he admit he committed the crime. He only stated he had learnt lessons behind bars and cherished freedom and was praying for a shorter sentence never mind statutory limits which mean nothing to him as a lay person. We will therefore in the circumstances of the case as played out and illustrated in this judgment allow the appeal against A2’s conviction as well as sentence. In our view the evidence available on the Record of Appeal did not point out that he took part in the robbery in issue. The appeal succeeds and the conviction and sentence of the Appellant is set aside. He is therefore discharged. (Sgd.) JANAPARE A. BARTELS-KODWO (MRS.) (JUSTICE OF APPEAL) Nobel-Nkrumah, (J. A.) I agree JEROME NOBEL-NKRUMAH (JUSTICE OF APPEAL) (Sgd.) Archer, (J. A.) I also agree CHRISTOPHER ARCHER (Sgd.) (JUSTICE OF APPEAL) COUNSEL: ❖ Stella Ohene Appiah (PSA) for the Republic ❖ Mr. Charles Ameyaw for the Appellant 14