PIUS VRS REREPUBLIC (H2/4/2023) [2023] GHACA 178 (7 November 2023)

IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL ACCRA CORAM: ANTHONY OPPONG JA (PRESIDING) CYRA PAMELA KORANTENG JA GIFTY AGYEI ADDO JA SUIT NO. H2/4/2023 DATE: 7TH NOVEMBER, 2023 NANA KOFI PIUS ..... ..... ..... APPELLANT VRS. THE REPUBLIC ..... ..... ..... RESPONDENT J U D G M E N T ANTHONY OPPONG, JA: The Circuit Court, Cape Coast convicted the 1st accused/appellant(hereafter to be called, for the sake of brevity, appellant) and others of the offences of conspiracy to commit robbery contrary to sections 23(1) and 149 of Act 29/60 as amended by Act 646/2003, robbery contrary to section 149 of Act 29/60 as amended by Act 646/2003, conspiracy to commit the offence of causing harm contrary to sections 23(1) and 69 of Act 29/60, causing harm contrary to section 69 of Act 29/60, conspiracy to commit the offence of unlawful entry contrary to sections 23(1) and 152 of Act 29/60, unlawful entry contrary to section 152 of Act 29/60, conspiracy to commit the offence of causing unlawful damage contrary to sections 23(1) and 172(1)(b) of Act 29/60 as amended by Act 554/1998 and causing damage contrary to section 172(1)(b) of Act 29/60 as amended by Act 554/1998. Upon the conviction, the learned Circuit Judge sentenced the appellant to various custodial sentences ranging from 15 to 25years on the various counts and the sentences were to run concurrently. In effect, the appellant was to serve 25 years sentence for the various offences committed. The appellant appealed against his conviction and sentence and the High Court, Cape Coast, dismissed the appeal but reduced the term of the custodial sentence of 25 years to 20 years. Undaunted, the appellant has exercised his right of further appeal to this court on the following grounds: 1. The sentence of 20 years imposed by the 1st appellate court is harsh and excessive and did not consider certain mitigating factors such as: i. ii. The appellant being a first-time young offender That the appellant did not benefit from the crime since ALL the items were retrieved 2. The learned High Court Judge erred when he held that the appellant’s statement that he was with his girlfriend did not constitute an alibi to have compelled the trial judge to have same investigated in compliance with section 131(3) of Act 30 3. That the conviction cannot be supported having regards to the evidence on record At this stage it may be appropriate to narrate the background facts of the case. At page 190 of the Record of Appeal (ROA), the Trial Judge succinctly stated the facts of the case in brief and I adopt them as mine. The facts were stated thus: In the early hours of 6th November, 2015, robbery took place at the business location of Electro Land Ghana Limited. (I must add that the robbery took place around 1.00am-1.30am). They (Electro Land Ghana Limited) were purveyors of home appliances and electronic gadgets. The store was totally ransacked and a number of electronic goods/gadgets stolen. The watchman at post was severely assaulted and he sustained injuries on his head, hands, eye and big toe. He was finally taken to hospital for treatment when the police responded to his distress call. At about 3.00am that same dawn, the police received intelligence report that some electronic gadgets were being discharged in a house at Pedu. Acting on that intelligence report, the police night patrol team surrounded the house and retrieved fourteen (14) Samsung Television sets, thirteen (13) Samsung mobile telephones, one (1) Nasco tablet and a microwave. These were identified as the items stolen from Electro Land Ghana Limited a few hours prior. Also found in the house were the first, second and third accused persons. (Note that the first accused person is the appellant herein). The appellant and the others were therefore charged on various counts of the offences alluded to supra, arraigned before the circuit court, tried, convicted and sentenced. I would like, first of all, to deal with ground three, namely that the conviction cannot be supported having regards to the evidence on record. By this ground I would proceed under the understanding that the appellant is saying that the conviction is unreasonable having regard to the evidence as a whole. By this ground, it admits of no controversy that the appellant is inviting this court to rehear the appeal by critically analyzing the entire evidence on record to determine the reasonableness or otherwise of the conviction or to determine whether the evidence supports the conviction or whether errors were committed by either the trial judge or the first appellate court (the High Court) which have occasioned substantial miscarriage of justice against the appellant. The learned trial judge at page 202 of the ROA concluded that the appellant and the other accused persons were the ones who conspired, unlawfully entered and robbed as well as caused harm to the 62-year-old security man (PW1) and caused damage to the doors and locks of Electro Land Ghana Limited. It bears emphasis that this finding and conclusion were premised under the immutable fact that the stolen items were found in the custody of appellant some few hours after the robbery took place in the store where Electro Land Ghana Limited carried out its business. This finding and conclusion were affirmed by the first appellate High Court. The trite principle of law is that in an appeal against concurrent findings, the second appellate court such as this instance ought to be slow in reversing the findings unless it can be shown that they are not supported by the evidence on record. In Kamil v. The Republic (2011) 1 SCGLR 300 and Gregory v. Tandoh (2010) SCGLR 971, the Supreme Court stated some other grounds the existence of which a second appellate court may be justified in reversing concurrent findings by two lower courts. One such ground is where the findings of fact by the trial court can be seen from the record to be either perverse or inconsistent with the totality of evidence adduced by the witnesses and the surrounding circumstances of the case. Another one is where the first appellate court had wrongly applied a principle of law. In such circumstances, the second appellate court would be at ease and unhampered to interfere with the said concurrent findings in order to ensure that absolute justice is done in the case. In the instant case, there is overwhelming evidence as to the robbery that took place in the shop of Electro Land Ghana Limited. PW1, the security man posted at the place of the robbery had a beating of his life and could have died as a result but for the rapid response of the police who moved to the scene in time and took him to hospital. The evidence showed further that the robbery took place around 1.00am; in the early hours of 6th November, 2015. Those who carried out the robbery operation broke into the shop of Electro Land Ghana Limited, and after a thorough ransacking, took away a lot of the items in the store. Barely two hours later, upon a tip off which turned out to be extremely useful, the police moved to a particular house where the police had had the information that certain electrical gadgets were being off loaded from a car. The police moved in and actually found the electrical gadgets in a room in a house and the gadgets were identified as those unlawfully taken from the shop of Electro Land Ghana Limited. What is perhaps the most important aspect of this narrative is the fact that the appellant was found in the very room in the house where the stolen electrical items were found. Indeed that room belongs to appellant. These set of facts in general and the peculiar circumstance whereby the appellant was found with the stolen items few hours after the robbery in particular undoubtedly conduce to the application of the doctrine of recent possession against him. This doctrine was mentioned in the case of Armah & Others v. The State (1961) GLR 136, SC. In the said case, the appellants were found in possession of large quantities of goods similar to those stolen from a shop at Knutsford Avenue, Accra few hours after the theft. The appellants were unable to give any reasonable explanation as to how they came by the goods. The Supreme Court cited the cases of R v. Marcus (1923) 17 Cr. App. R. 191 and R. v. Loughlin (1951) 35 Cr. App. R. 69 and applied the doctrine of recent possession to express the opinion that the jury could have been directed to convict based on the given facts. Indeed, in R. v. Loughlin supra, it was held that where it is proved that premises have been broken into and property stolen therefrom, and that soon after the breaking the prisoner has been found in possession of that property, just as it happened in the instant case, it is open to the jury to find the prisoner guilty of breaking and entering, and the jury should be so directed. It appears to me that on the evidence as a whole, the trial judge, rightly in my view, adequately considered and applied the doctrine of recent possession in convicting the appellant of the offences charged and the High Court, first appellate court, acted appropriately in affirming the finding and the conclusion of the trial court, especially so if one considers the inconsistent and for that matter the unreasonable explanation given by the appellant as to how the goods came under his possession in his room. It has been mentioned that in the Armah and Others case supra, the Court could apply the doctrine of recent possession because the prisoner could not proffer any reasonable explanation as to how they came by the goods. It is therefore incumbent on this court to consider the explanation given by the appellant relating to how the stolen electrical gadgets came into his possession few hours after they had been stolen. The High Court critically analyzed the record and came to the conclusion that the conflict in the evidence of appellant and that of A2 coupled with the time of the purported transaction the two purportedly engaged in rendered the explanation of appellant unreasonable. I cannot help but agree with the learned High Court Judge that, having regard to the evidence on record, the appellant could not offer any reasonable explanation as to how he came by the electrical gadgets few hours after they had been stolen. Apart from the application of the doctrine of recent possession which was appropriately applied to convict the appellant, the evidence of PW1, the watchman who was the only one who witnessed the robbery supports the conviction. PW1 testified that the robbers talked to him as well as talked to each other. Even though the robbers were wearing facemasks, and so seeing their faces was difficult if not impossible, their voices could not be concealed. PW1 insisted that the appellant spoke to him in Fanti language and that he could identify his voice. The evidence that PW1 could identify the voice of appellant was not challenged. Appellant contended that he could not have spoken Fanti because he does not speak Fanti at all but PW1 insisted that the appellant spoke Fanti. Nevertheless, appellant did not call any evidence out of which the court could have been convinced that his inability to speak Fanti was more probable than what PW1 insisted on that he could speak Fanti. In other words, the doubt that appellant was required to create as to his inability to speak Fanti was ignored by appellant to his detriment. The next ground of appeal to look at is the criticism of the Learned High Court Judge who is accused of committing an error in holding that the appellant’s statement that he was with his girlfriend did not constitute alibi to have compelled the trial judge to have same investigated in compliance with section 131(3) of Act 30. Section 131 of Criminal and Other Offences (Procedure) Act, 1960 (Act 30) provides: (1) Where an accused intends to put forward as a defence a plea of alibi, the accused shall give notice of the alibi, to the prosecutor or counsel with particulars as to time and place and of the witnesses by whom it is proposed to prove, (a) Prior, in the case of a summary trial, to the examination of the first witness for the prosecution, and (b) Prior, in the case of trial on indictment, to the sitting of the trial Court on the date to which the case of trial has been committed for trial (2) Where the notice is given the Court may, on the application of the prosecution, grant a reasonable adjournment. (3) Where the accused puts forward a defence of alibi without having given notice, the Court shall call on the accused to give notice to the prosecution of the particulars mentioned in subsection (1) forthwith or within the time allowed by the Court and after the notice has been given, if the prosecution so desires, adjourn the case” In this case, the first time the appellant had an opportunity to say anything in his defence of the charges preferred against him, he did not allude to any semblance of alibi. In both his Investigation and Charge Caution Statements found at page 223 and 231 respectively in the ROA, the appellant did not put forward any defence of alibi. Neither did the appellant give any notice of alibi prior to the examination in chief of PW1. What is even more problematic is the absence of place and time in the so-called alibi the appellant expected the Court to adjourn the case for it to be investigated. That is to say, the appellant did not say at about 1.00am when the offences were being committed, he was in any specific place with his girlfriend. It was rather not until the appellant was giving evidence in chief in his defence at page 109 of the ROA that he said: “He (A2) said they had gone to my house and it was locked up. I said I did not sleep in the premises and I was with my girlfriend” It is against the backdrop of these incontrovertible facts that the learned High Court Judge opined that the statement made by the appellant to the effect that he did not sleep in the house where the stolen items were found in his possession and that he was with his girlfriend whose name was not even mentioned does not constitute a plea of alibi. To a very large extent, I agree with him that the manner the appellant purported to portray a case of alibi was not worth the attention of the prosecution and for that matter the Court for the simple reason that the appellant failed to mention time and place of the so-called defence of alibi. Granted that this shared view is incorrect, and that the Court should have caused the semblance of alibi to be investigated and that was not done in accordance with section 131 of Act 30, the appellant still owed it as a bounden duty to adduce cogent evidence on the alibi so as to establish the substance of it. And if that had been done the Court would have been obliged to consider that defence in evaluating the evidence as a whole. The point has been made in the case of Afwireng v. The Republic (1972) 1 GLR 270 that where the Court does not call upon an accused to give particulars of the notice of alibi when the defence of alibi is raised, and the prosecution also does not call the attention of the Court to the requirement under section 131 of Act 30, and does not apply for the particulars of the defence of alibi to be given, such failure does not make it impossible for the court to believe the accused person nor does it allow the court to exclude any evidence adduced by the accused person on the alibi. Edmund Bannerman C. J. in the Afwireng case explained that it is only when a person who has been directed by the Court to furnish the prosecution the particulars of alibi and the accused person refuses or fails to comply with the directives of the court that any evidence in support of the alibi becomes inadmissible and thus excluded from the evidence. This implies that if the appellant had adduced cogent evidence as to time and place where he was and had called credible evidence to support that evidence, the Court would have been obliged to place that defence in its proper place, and if satisfied as to its cogency, could have acquitted the appellant. Indeed, in the case of Kweku Attah v. The Republic (Criminal Appeal No. J3/01/2018 dated 6th April, 2022, Professor Mensah Bonsu JSC reminded us that: “It must be remembered that alibi is a defence and so nothing stops an accused whose alibi is not checked by the prosecution from calling such witnesses. In R v. Val-vannis (1957) 2 WALR 199, an appellant made an application to the court halfway through the trial that he intended to rely on the defence of alibi. The application was refused by the court. It was held that the accused was not thereby inhibited from calling witnesses himself…. Despite the failure of the appellant to comply with the requirements in section 131, the judge in his summing up specifically instructed the jury not to ignore the evidence of the accused.” In the circumstance, it is my considered view that the criticism that the learned High Court Judge erred when he considered the sort of plea of alibi put forward by appellant was not worth investigating under section 131 of Act 30 is not well placed. Even if the view of the Learned High Court Judge was misapprehensive of the facts and the law, it did not occasion any substantial miscarriage of justice, especially so when the appellant also failed to adduce cogent evidence as to time and place, an indispensable ingredient of the plea of alibi. He could even have called the so called girl friend to support his weightless evidence on the alibi. The point to be emphasized is that granted that the trial court failed to comply with the requirements of subsection (3) of section 131 of Act 30, in that he failed to call on the appellant to give notice to the prosecution of the particulars of alibi he was raising, there is no indication that the trial court excluded any evidence relating to the alibi. As a matter of fact, the appellant made a poor show in his effort to lead evidence on the alibi. He did not even make any serious effort in that enterprise. Hence, the conclusion that no miscarriage of justice has been occasioned by the failure to comply with section 131. I would proceed to look at the last ground of this appeal. The question to be asked thereunder is whether the 20 years custodial sentence imposed on the appellant by the High Court was harsh and excessive having regard to the fact that the appellant was first time offender coupled with the fact that the appellant did not benefit from the crime. It may be observed that the trial judge imposed 25 years sentence on the appellant and the first appellate High Court, without assigning any reason, varied “the sentence of 25 years imposed on the appellant by the trial court on counts 2 and 3 for robbery to 20 years” The established facts of the case on the record depict that the robbery was well planned and in executing the plan, the security man at the premises, PW1, was nearly beaten to death. The masterly manner and the ruthlessness with which the robbery was done take away any leniency when dealing with the perpetrators. Here, the fact that the appellant is a young first offender will not aid him. This reminds me of the principle enunciated by the Supreme Court in the case of Frimpong alias Iboman v. The Republic (2012) 1 SCGLR 297 at 328 to the effect that in considering whether an accused is a first offender, one has to look at the manner the crime was committed to ascertain whether it was committed by a young offender. Whether or not the person acted as a young offender could be deduced from the type of crime committed, the circumstances under which the crime was committed and the casualties if any. The Supreme Court concluded that “if a first offender commits a serious crime like robbery, which is a first-degree felony, then it is to be presumed that the first offender himself had divested himself of any lenient considerations” The trial circuit judge in passing the sentences upon convicting the appellant and the others articulated her impressions and the reasons behind the exercise of her discretion in imposing the 25 years on the appellant on the count of robbery. She described the robbery as “carefully orchestrated attack”, emphasizing that the crime was carefully planned and executed. She also remarked that the appellant and the other convicted persons did not show “an iota of remorse all through the trial but buried themselves deeper into the web of lies they wove in their defence” The trial Circuit judge was not oblivious of the criteria articulated in the case of Kwashie v. The Republic (1971) 1 GLR 488 as to what factors to consider in determining the length of sentence to impose. Indeed, she commendably referred to the Kwashie case and stated the factors as follows: 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 incidence took place or in the country generally 5. The sudden increase in the incidence of the particular crime 6. Mitigating or aggravating circumstances such as extreme youth, good character and the violent manner in which the crime was committed She also commendably took into consideration Article 14(6) of the Constitution, 1992 and considered the period the appellant spent in lawful custody on remand before the completion of the trial in imposing the 25 years term of imprisonment. Having dutifully discharged her role commendably as a trial judge on the facts, utilizing her observations which is peculiarly within her domain, as well as on the law relating to what to look for in determining length of sentence, and there being no consideration of irrelevant principles, the first appellate court had no factual or legal basis (and what is worse is that he did not articulate any) to reduce the 25 years term of the sentence to 20 years. It must be emphasized that the imposition of sentence is discretionary and so far as a particular sentence imposed is within the statutory limits to be imposed by the court, the appellate court must not interfere with such a sentence unless in its opinion, the sentence is manifestly excessive having regard to the circumstances of the case or that the sentence is wrong in principle. (See the case of Apaloo v. The Republic (1975) 1 GLR 156) In this case where the sentence imposed by the Circuit Court cannot be said to be manifestly excessive having regard to the circumstances of this case and neither is it arguable that the sentence was wrong in principle, the High Court, the first appellate court, was palpably wrong to have interfered with the 25 years sentence imposed on the appellant by the Circuit Court. One must also not forget that it has been held in the case of Arthur v. The Republic (2018-2019) 2 GLR 820, CA that where the sentence handed out by a trial court was well within the maximum prescribed by law, the appellate court might not disturb the sentence merely because it would have been predisposed to giving a lighter sentence if it had tried the case at first instance. And this is especially so where the record showed the trial judge to have considered matters pertinent to sentencing such as pertained in this case. The reduction of the sentence by the first appellate high court is accordingly set aside and the sentence imposed by the trial circuit court is restored as I consider the 25 years term of the sentence unimpeachable having regard to the facts and the law. The appellant does not deserve any leniency or mercy. The appeal accordingly fails and same is dismissed. The sentence of 25 years imposed by the trial circuit court is hereby by an order of this court restored. SGD ............................. JUSTICE ANTHONY OPPONG (JUSTICE OF THE COURT OF APPEAL) SGD I AGREE ........................... JUSTICE CYRA PAMELA C. A. KORANTENG (JUSTICE OF THE COURT OF APPEAL) SGD I ALSO AGREE ............................. JUSTICE GIFTY AGYEI ADDO (JUSTICE OF THE COURT OF APPEAL) COUNSEL: KWAME OWUSU AGYEMANG FOR APPELLANT NANA AMA ADENKRA (SSA) FOR RESPONDENT 14