HASSAN VRS REPUBLIC N (UW/WA/HC/F6/01/2022) [2023] GHAHC 650 (1 November 2023)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE GHANA HELD AT WA IN THE UPPER WEST REGION ON TUESDAY THE 1ST DAY OF NOVEMBER, 2023 BEFORE HIS LORDSHIP JUSTICE ABDUL YUSIF ASIBEY - HIGH COURT JUDGE BASIBA HASSAN SALIFU @ LARGE VRS. THE REPUBLIC SUIT NO. UW/WA/HC/F6/01/2022 APPLICANT RESPONDENT ----------------------------------------------------------------------------------- JUDGMENT Before the Court is an appeal arising from the conviction and sentence of BASIBA HASSAN-Appellant herein by His Honour Jonathan Avogo, the trial Circuit Court Judge on 21st day of October, 2021. BACKGROUND The background to the instant appeal is that Appellant Basiba Hassan was charged together with one Salifu (at large) for the following offences:- COUNT ONE (1): Abetment of Causing Unlawful harm contrary to section 20(1) of the Criminal Offences Act, 1960, (Act 29); COUNT TWO (2): Unlawful Entry contrary to Section 152 of Act 29/60. COUNT THREE (3): Possession of Firearm without authority contrary to section 11 of the Arms and Ammunition Act, 1972 (NRCD 9). COUNT 4: Robbery contrary to section 149 of Act 29/60. The brief facts of the case as presented by the prosecution at the trial Circuit Court were that on the 10th day of August 2021, A1 and A2 met at Boli and they agreed to act together to go on robbery at Boli village. Same day at about 9:00pm, A1 who was wielding a single barrel gun and three ammunitions together with A2 proceeded to the house of complainant, knocked at his door and ordered him to open but he refused. A1then gave the gun to A2 and he fired the complainant through a hole beneath the door and the complainant sustained gunshot wound on his right calf and he bled profusely. A1 and A2 who were well known by complainant and the witnesses broke the door and entered the room. They ordered the complainant together with Abdullai Allaye, Karim Barre, Gad Hamidu and Braimah who were with the complainant in the room to lie down in a prone position. The Appellant and A2 made away with complainant’s blue Haojue Motorbike with registration mark M-21-UW 8327 valued at GH¢5800,00 three mobile phones cash sum of Gh¢50,00 and absconded. The complainant was rushed to the Regional Hospital Wa for treatment. Witness Abdulai Allaye quickly alerted the entire Boli and Busa villages about the incident. Witness Naa Rashid and Rafik Dauda who belong to the neighborhood Watch committee at Busa upon receiving the information, swiftly mounted surveillance at the Busa road. About 30 minutes later, they spotted the Appellant and A2 on the complainant’s motorbike heading towards their direction. They intercepted the Appellant and A2 upon confrontation the Appellant and A2 escaped through a nearby bush leaving the motorbike behind and a pair of black slippers belonging to A2. On 12th August, 2021 at about 2:00pm, upon intelligence received, police proceeded to the house of Appellant and arrested him. He led the police to a rocky area about Two Hundred and fifty metres from his house and pointed to a particular tree where he hid the single barrel gun and same was retrieved by the police. Later witnesses Naa Rashid and Rafik Dauda identified the Appellant as the culprit from whom they retrieved the motorbike. On 14th August 2021, witness Abdulai Allaye led police together with Appellant to the crime scene at Boli. A search conducted at the crime scene revealed a spent shell, a pair of blue trousers with bullet penetration belonging to the complainant and blood stains on the wall of the room. These pieces of evidence were retrieved, labelled and kept for evidential purposes. In his cautioned statement, the appellant admitted the offence and further asserted that he stole the single barrel gun from Boli for the sole purpose of engaging in the act of robbery. Upon advice from the Attorney General’s Department Wa, Appellant was arraigned before Court charged with the offences stated on the charge sheet. On his arraignment before the trial Circuit Court on 21st October, 2021, the accused pleaded guilty simpliciter on all four counts. On the strength of the guilty plea entered by the Appellant, the trial Circuit Court proceeded to convict and sentenced him to one year imprisonment on counts one, two, and three. For Count Four ie. Robbery Appellant was sentenced to 15 years IHL. GROUNDS OF APPEAL The sole ground of Appeal as contained in the Record is that:- “The conviction is contrary to law and procedure and same has occasioned substantial miscarriage of Justice”. AN APPEAL BY WHAT MEANS An Appeal, is by way of re-hearing. (see sec. 30 of COURTS ACT, 1993 (ACT 459); QUARCOOPOME V SANYO ELECTRIC TRADING CO. LTD AND ANOR (2009) SCGLR 213 @ 229. Re-hearing means the Appellate Court has the power to re-evaluate and analyse the entire record of proceedings and come out with its own findings and conclusion different from that of the trial Court. In DEXTER JOHNSON V THE REPUBLIC (2011) 2 SCGLR 601 @ 669, it was held thus:- “ What is therefore meant by an appeal being by way of re-hearing is therefore that the appellate Court has the power to either maintain the conviction and sentence, or set it aside and acquit or discharge or increase the sentence…….” CONSIDERATION OF THE GROUNDS OF APPEAL In his written submission, Counsel for Appellant argued that “the conviction is contrary to law and procedure and same has occasioned substantial miscarriage of justice”. Counsel explained that Appellant was convicted in breach of both law and procedure. That the Appellant pleaded guilty simpliciter to the charges preferred against him. Counsel made reference to section 199 of Act 30. Which provides:- Procedure before Trial Court. “199. Plea of guilty i. Where the accused pleads guilty to a charge, the Court before accepting the plea shall, if the accuse is not represented by Counsel, explain to the accused the nature of the charge and the procedure which follows the acceptance of a plea of guilty. 2. 3. The accused may then withdraw the plea and plead not guilty. A statement made by the accused in answer to the court shall be recorded by the Court in writing and shall form part of the record of proceedings. 4. Where the accused pleads guilty but adds words indicating that the accused may have a defence or so indicates in answer to the Court, the Court shall enter a plea of not guilty and record it as having been entered by order of the Court” Counsel noted that section 199(1) is stated in mandatory terms. The trial Court cannot therefore bargain out the section by refusing or neglecting to comply with it. Counsel further cited DARKURUGU V THE REPUBLIC (1989-90) 1 GLR 308 and stated that having regard to section 171(2) and 199 of Act 30… to ensure total justice to the accused who pleads guilty, the trial magistrate or judge who is identified as the key actor in taming the dragon is to observe the following rules:- i. He must ensure that the guilty plea is voluntary, ii. He must ensure that the plea is intelligent, in other words that the accused knows his rights, the nature of the charge to which he is pleading and the consequences of his plea. The “rights” here include the right to a full trial. iii. He must ensure that there is a factual basis for the plea. iv. It is desirable that the trial magistrate or judge personally addresses the accused in the language that he understands; and that all these processes must be recorded.” Appellant’s case is that it is clear the trial Court failed to observe the rules laid down in the authorities cited above before purporting to accept the guilty plea of the Appellant. The mandatory requirements ie. Section 199(1) of Act 30) that the Court failed to observe is a breach of an Act of parliament. On the effect of non-compliance of an Act of parliament, Counsel cited REPUBLIC V GYAMFI (2013) 44MLRG 165 and emphasized that any act of a Court that is contrary to a statute is, unless expressly or impliedly provide, a nullity” (See Rep. V High Court (Fast Track Division) Accra; ex-parte National Lottery Authority (Ghana Lotto Operators Association & Ors. Interested Parties) 2009 SCGLR 390 @ 397. Counsel submitted that the failure or neglect by the trial Court to adhere to the provisions of an Act of Parliament (ie. Section 199 of Act 30) has occasioned a substantial miscarriage of justice against the Appellant. On that note, Counsel invited the Court to allow the appeal, acquit and discharge the Appellant. In its written response to the submission by the Appellant, the Republic submitted that procedurally, Counsel for Appellant missed the point when he referred to section 199 of Act 30 as the relevant section the trial Circuit Court should have adopted in the trial of Appellant. The Republic maintained that procedurally, section 199 of Act 30 falls under part 4 of the Criminal and Other Offences (Procedure) Act, 1960, (Act 30). Part 4 is for trials on indictable offences. The trial of Appellant at the Circuit Court was done summarily. Procedurally, and appropriately, the trial was done under section 171 of Act 30. Section 171 comes under part three of Act 30 and that deals with summary Trial which was the mode of trial adopted by the trial Circuit Court Judge. That the judge followed the procedure for summary trials as stated under section 171 of Act 30. The trial Circuit Judge acted squarely within the law when he accepted the guilty plea of Appellant and Summarily convicted him on his own plea. There has not been any substantial miscarriage of justice to Appellant. The Republic therefore prayed the Court to dismiss the instant appeal as being without merit and affirm the decision of the trial Circuit Court. This Court will re-evaluate and analyse the entire record of proceedings and make a decision. Arising out of the Record of Appeal, and the respective written submissions of Counsel for Appellant and the Republic, this Court, has set down the following issues for re-evaluation. i. Whether or not the offences preferred against accused should have attracted a trial on Indictment or a Summary trial. Per the charge sheet, the offences preferred against the accused were as follows:- COUNT ONE:- Abetment of Causing Unlawful Harm:- contrary to section 20 (1) and 69 of the Criminal Offences Act, 1960 (Act 29) COUNT TWO:- Unlawful Entry:- Contrary to section 152 of the Criminal Offences Act 1960 (Act 29); COUNT THREE Possession of Firearm without Authority Contrary to section 11 of Arms And Ammunitions Act, 1972 (NRCD 9). COUNT FOUR:- Robbery contrary to section 149 of the Criminal Offences Act, 1960 (Act 29). Regarding Summary Trial, PART THREE of Act 30 has the following provisions:- 163 Summary trial i. A reference in an enactment to an offence as a summary offence, triable summarily, or punishable summarily, means that the offence shall be tried in accordance with this part. 2. Where it is not provided as to whether an offence is triabe summarily or on indictment, the Offences shall be triable as a Summary Offence. 164 Application This part applies to the Summary trial of an offence by a District Court, a Circuit Court or the High Court. With the trial for an Indictable Offence, PART FOUR of Act 30 provides:- 181:- PROCEDURE When a person is before a District Court Charged with an Offence which is not being tried Summarily there shall be a preliminary hearing of the case by the Court, at which the procedure laid down in this part shall be followed. This Court will now consider the Offences preferred against accused and decide whether they were triable Summarily or on indictment:- COUNTS ONE: AND TWO: With respect to Counts one ie. section 20(1) and Count two section 152 of Act 29 respectively, there is not mention in Act 29 as to whether they are to be tried Summarily or not. Per Section 163 (2) of Act 30, therefore, Counts one and two are to be tried summarily COUNT THREE:- With respect to Count three, the appellant was charged under Section 11 of Arms and Ammunition Act 1972 (NRCD 9). To answer the question as to whether Count three is triable summarily or not, Reference is made to section 26 of Arms and Ammunition Act, 1972 (NRCD 9). Section 26 OF NRCD 9 Supra provides:- 26 (1) “A person commits an offence and is liable on summary conviction to a fine not exceeding one thousand penalty units or to a term of imprisonment not exceeding five years or to both the fine and imprisonment, if that person”. a. Contravenes a provision of this Act or a condition or restriction imposed in respect of a permit granted to that person” (emphasis mine) Clearly, per section 26 of (NRCD 9), Possession of Fire arm without lawful authority is tried summarily, COUNT FOUR: - ROBBERY:- Section 149 of Act 29/60 provides:- “A person who commits robbery commits a first degree felony” As to the mode of trial of robbery, reference is made to the Criminal Code (Amendment) Act 2003 (Act 646). Section 1 of Act 646 Provides:- “Whoever commits robbery is guilty of an offence and shall be liable, upon conviction on trial summarily or on indictment, to imprisonment for a term of not less than ten years, and where the offence is committed by the use of an offensive weapon or offensive missile, the offender shall upon conviction be liable to imprisonment for a term of not less than fifteen years”. Section 2 of Act 646 provides:- “For the purposes of subsection i. The Attorney-General shall in all cases determine whether the offence shall be tried summarily or on indictment. 3. In this section “offensive weapon” means any article made or adapted for use to cause injury or damage; and “offensive missile” includes a stone, brick or any article or thing likely to cause harm, damage or injury if thrown”. On a plain and ordinary meaning of section 2 of Act 646, there is no criteria as to which type of robbery is for a summary trial or which type of robbery for a trial on indictment. See OWUSU-DOMENA V. AMOAH (2015-2016) 1 SCGLR 791 @ 801. Per the provisions set down in sections 1 and 2 of Act 646 (supra), it is the Attorney General, perhaps based on the facts, evidence and other factors who decides that a particular type of robbery is for trial summarily or for a trial on indictmentA Circuit Court cannot handle trials on indictment. There were four Counts that were preferred against appellant As has been highlighted above, Counts one, two and three per criminal procedure rules were to be tried summarily. It is only Count Four (Robbery) which was to be tried either summarily or on indictment. All the four Counts stem from one “Operation”. Instead of going for a summary trial in three Counts and coming to the High Court for a trial on indictment in one, what blunder did the Attorney General commit in deciding that for convenience and for speedy trial, all four counts be heard summarily at the Circuit Court. Counsel for Appellant raised issues to the effect that there is no evidence to prove that the Attorney- General determined that the Offence of robbery be tried summarily. It is trite that the police prosecute criminal cases on behalf of the Attorney General. Where appropriate the police seek the advice of the Attorney General. In the instant case, the facts of the case, which is part of the Record of Appeal filed by the Appellant in the very last paragraph states thus:- “ On the 16/08/2021, a duplicate docket was sent to Attorney General’s Department for advice. On the 6/10/2021 upon the advice from the Attorney General’s Department Wa, suspect Hassan Basiba was charged with the offences stated on the charge sheet and arraigned before this honourable Court.” It is clear from the above that it was upon the advice of the Attorney General that the offence of robbery together with the other offences triable summarily that appellant was arraigned before the Circuit Court. This Court therefore holds that the summary trial of Appellant for all the offences preferred against him was proper and appropriate. Having established that the mode of trial for the offences preferred against Appellant at the Circuit Court was a summary trial, this Court will now turn its attention to the procedure adopted by the trial Circuit Judge. The relevant section is section 171 of Act 30. The section provides:- 171 ACCUSED BE CALLED UPON TO PLEAD 171 (1) Where the accused appears personally or by Counsel as provided under section 79, the substance of the charge contained in the charge sheet or complaint shall be stated and explained to the accused or if the accused is not personally present to the Counsel of the accused, and the accused or Counsel of the accused shall be asked to plead guilty or not guilty. 171 (2) In stating the substances of the charge, the Court shall state particular of the date, time, and place of the commission of the alleged offence, the person against whom or the thing in respect of which it is alleged to have been committed, and the section of the enactment creating the offence. 171 (3) A plea of guilty shall be recorded as nearly as possible in the words used, or if there is an admission of guilt by letter under section 70 (1), the letter shall be placed on the record and the Court shall convict the accused and pass sentence or make an order against the accused unless there appears to it sufficient cause to the contrary. 171 (4) Where the plea is one of not guilty the Court shall proceed to hear the case” This Court now turns its attention to the actual Court room procedure adopted by the trial Circuit Judge and evaluate whether or not there has been any miscarriage of justice. The appellant appeared in Court on 21st October, 2021. The Record of proceedings on 21/10/2021 attached to the Appeal Records, clearly show that the charge was Read and Explained to accused in Waale (CRE-WAALE) We all know Court room procedure. The interpretation of the charge, statement of the offence, particulars of offence including the date, time, place of the commission of crime, the thing in respect of which the crime was committed, the victim etc. were all read and explained to the accused in Waale. It is the accused who informs the Court the language he understands and in which he feels comfortable with. So that if the charges were read and the plea taken in Waale, it is the accused himself who told the Court to read the charges and take his plea in Waale. From an evaluation of the Record of Proceedings on that fateful 21st October, 2021 this Court, makes a finding of fact that as per the procedure for summary trial set down in part three of Act 30, the Trial Circuit Court followed the laid down procedure and convicted the accused. The age of appellant at the time of conviction and sentence, per the records is given as 20 years. Appellant was therefore not a juvenile at the time of conviction and sentence. Appellant was given one year Custodial sentence in respect of Counts one, two and three. For Count four the trial Circuit Judge wrote thus:- “……….. accused is sentenced to 15 years imprisonment IHL because a weapon was involved” The 15 years sentence was the barest minimum that could be passed with respect to the charge preferred against Appellant. As already stated, appellant was not a juvenile. It is because the trial judge took into consideration his age (20) years as a young adult that he slapped on him the barest minimum sentence in respect of Count 4. Learned Counsel for Appellant has expended a lot of energy submitting that there has been a substantial miscarriage of justice in respect of Count Four ie. Robbery. Counsel’s bone of contention is that the offence of robbery preferred against appellant should have been tried on indictment and not a summary trial. To Counsel, this failure on the part of prosecution and on the Court has resulted in a substantial miscarriage of justice to Appellant. This Court, respectfully disagrees with Counsel. As has been addressed above, the offence of robbery was committed along with other offences which are triable summarily. The police, as has been explained, referred the case docket to the Attorney General who rightly adviced that all the ofences be tried summarily. Section 31 (2) of the Courts Act, 1993 (Act 459) provides as follows:- “The Appellate Court shall dismiss the appeal if it considers that a substantial miscarriage of justice has not actually occurred or that the point raised in the appeal consist of a technicality or procedural error or a defect in the charge or indictment but that there is evidence to support the offence alleged in the statement of offence in the charge or indictment or any other offence of which the accused could have been convicted on that charge or indictment”. In the Supreme Court case of KUCHAMA alias FRIDAY V THE REPUBLIC (2017- 2020) 2 SCGLR 135 @ 141 the Supreme Court on the issue of technicalities raised on appeal had this to say: “In our respectful view, we find from the submission of Counsel for the appellant that the mere absence of the word “Convict” in the above order of the Court renders the thirty years sentence bad in law as very disturbing indeed. In as much as in all criminal cases in this country and elsewhere the liberty of the accused person is paramount, a Court of law naturally in the course of judicial proceedings may make errors in the nature of omissions, but it is the duty of appellate Courts to carefully consider whether such errors are fundamental and occasion injustice to an appellant. This has found statutory support in section 406(1) of the Criminal and other Offences (Procedure) Act, 1960 (Act 30), which section was not referred to in all the cases referred to in this judgment. The section falls under irregular proceedings and states thus:- “406 Finding or sentence when reversibility by reason of error of omission i. Subject to this part a finding, sentence or order passed by a Court of competent jurisdiction shall not be reversed or altered on appeal or review on account:- a. of an error, omission or irregularity in the complaint, summons, warrant charge, proclamation, order, judgment or any other proceedings before or during the trial or in an enquiry or any other proceedings under this Act, or b. c. Of the omission to revise a list of jurors in accordance with part five, or Of a misdirection in a charge to a jury, unless the error, omissions, irregularity, or misdirection has in fact occasioned a substantial miscarriage of justice” It is the finding of this honourabe Court that the police, arraigned appellant at the appropriate forum, and the trial judge followed the mode of trial as Set down in the Criminal and other Offences Act, 1960 (Act 30), The guilty plea of appellant and subsequent conviction and sentence of appellant at the trial Circuit Court were based on laid down procedure. Learned Counsel’s submissions of a substantial miscarriage of justice suffered by appellant is indeed misplaced. This honourable Court accordingly dismiss the appeal and affirms the conviction and sentence of appellant on all the Counts by the trial Circuit Court. Appeal dismissed. HIS LORDSHIP A. YUSIF ASIBEY HIGH COURT JUDGE WA. SGD COUNSEL: 1. SIDDIQUE UBEIDU ESQ. FOR APPELLANT 2. MIRIAM AMOAKO WITH HER FRANCES ESQ. ACQUAYE AND KWAME BOATENG-ALL BEING LED BY SAEED ABDUL SHAQUR – PRINCIPAL STATE ATTORNEY FOR THE REPUBLIC. 15