BARIKI & 2 OTJERS VRS REPUBLIC (F22/04/2024) [2024] GHAHC 349 (5 March 2024)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE HELD AT WA ON TUESDAY 5TH MARCH, 2024 BEFORE HIS LORDSHIP JUSTICE A. YUSIF ASIBEY – HIGH COURT JUDGE 1. JANLO BARIKI 2. JORDIMA BOLLI 3. SONDE TONGODE VRS SUIT NO F22/04/2024 APPELLANTS THE REPUBLIC RESPONDENT JUDGMENT INTRODUCTION This is an appeal against the conviction and sentence of the Appellants herein by the Circuit Court, Wa presided over by His Honour Jonathan Avogo on 16th August, 2023. The appellants were arraigned before the Wa Circuit Court on a charge of conspiracy to commit crime contrary to Section 23(1)of the Criminal Offences Act 1960 (Act 29) and one charge of robbery, contrary to section 149 of the Criminal Offences Act, 1960, Act 29. On 10thJuly, 2023 the Appellants pleaded ‘Not Guilty’ to both charges. The facts of the case are as follows; The Complainant in the case, one Issah Dramani is a Fulani herdsman resident at Dolibizon. The Appellants are resident at Dolibizon and Sumbro. On 01/07/2023 complainant went and sold six of his cattle and made an amount of GHS65,000.00. On the same date at about 10:00pm, whilst complainant was in his hut located at the Dolibizon, the appellants and one other wielding locally made shot-gun and sticks attacked him and ordered him to surrender all his money. 1 | P a g e Complainant resisted and the Appellants and one other subjected him to severe beating and succeeded in robbing him of cash, the sum stated on the charge sheet. A report was made at Tumu Police station and on 06/07/2023 the Appellants were arrested from their hideout but two other managed to escape arrest with the money and the gun. The Appellant admitted the offences in their investigation cautioned statements. A search was conducted in their huts and the cutlass which they used to commit the offence was retrieved. After investigation, the Appellants were charged with the offences stated on the charge sheet. After trial, the trial circuit court judge convicted the Appellants and sentenced them to fines for count 1 (250penalties each) and a prison term of 15years, 17years and 10years respectively for count 2. DUTY OF THE COURT In the case of Kwesi v. The Republic [1977] 1 G.L.R. 448 at pp. 451-452, the court laid down the principle that should guide an appellate court as follows: “On first appeal from a conviction by a circuit judge or magistrate in a summary trial, the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. The appellate court has the duty to re-hear the case and re- consider the materials before the circuit judge or magistrate with such other materials as it may have decided to admit. The appellate court must then make up its own mind, not disregarding the judgment appealed from, but carefully weighing and considering it. Section 30 of Courts Act 1993 (Act 459) also stipulates; Subject to the provisions of this Sub-Part, an appellate court may in a criminal case— (a) on an appeal from a conviction or acquittal— 2 | P a g e (i) reverse the finding and sentence and acquit and discharge or convict the accused as the case may be or order him to be retried by a court of competent jurisdiction, or commit him for trial; or (ii) alter the finding, maintaining the sentence or with or without altering the finding, reduce or increase the sentence; or the sentence; or (iii) with or without such reduction or increase and with or without altering the finding alter the nature of the sentence; or (iv) annul the conviction and substitute a special finding to the effect that the accused was guilty of the act or omission charged but was criminally insane so as not to be responsible for his action at the time when he did the act or made the omission and order the accused to be confined as a criminally order insane person in a mental hospital, prison or other suitable place of safe custody; (v) annul or vary any order of imprisonment or other punishment imposed on the person convicted; (vi) annul or vary any order for payment of compensation or of expenses of the prosecution or for the restoration of property to any person whether or not the conviction is quashed; The court also takes note of its power under Section 330(2) of Act 30; ‘After perusing the record and hearing the appellant or the appellant’s counsel, if the counsel appears, and the respondent or the respondent’s counsel, if the counsel appears, the Court may determine the appeal in accordance with law.’ Counsel for the Appellant filed his written submissions on 5th January, 2024. No written submissions have been filed on behalf of the Republic. In view of the above authorities, the Court will now consider the whole evidence adduced during the trial to enable this court reach a decision on the matter. GROUNDS OF APPEAL In the petition for appeal filed on behalf of the Appellant, the following grounds were raised; 3 | P a g e 1. The learned trial judge erred in law when he failed to consider the defence of the Accused persons. 2. The sentence is harsh and excessive taking into consideration the circumstances of the appellant. In his Written Submission, Counsel for the Appellant argued an additional ground as follows; The learned trial judge erred in law when he admitted the investigation cautioned statements of the Appellants as confession statements when the independent witness did not understand the language spoken by the accused persons and same was not voluntary. In considering the grounds, the Court will first analyse the evidence adduced during trial and determine if the conviction is in accordance with law. Count 1: The Appellants were charged for conspiracy to commit crime contrary to Section 23(1)of the Criminal Offences Act 1960 (Act 29). According to the charges, the Appellants agreed to act together with a common purpose to commit robbery. Section 23(1) of Act 29 provides; “Where two or more persons agree to act together with a common purpose for or in committing or abetting a criminal offence, whether with or without any previous concert or deliberation, each of them is guilty of conspiracy to commit or abet the criminal offence” The case of the Republic v Ernest Thompson and Others Criminal Appeal No J3/05/2020 dated 17th March, 2021 explains that for prosecution to succeed on a charge of conspiracy to commit crime, ‘… the persons must not only agree or act, but must agree to act together for a common purpose. Having regard to this new formulation of the offence of conspiracy a person could no longer be guilty of conspiracy in the absence of any prior agreement.’ From the evidence before it, the Court does not find sufficient proof of a prior agreement by prosecution. For this reason, a conviction for conspiracy cannot stand. The Court takes note of the investigation cautioned statements of the Appellants which were the only evidence adduced at trial. The Court will consider them when I deal with the second charge. In the absence of proof of prior agreement by the 4 | P a g e appellants to rob, the Court hereby acquits and discharges the Appellants on Count 1 on the Charge Sheet. The Court will now proceed to address the second charge; Robbery contrary to Section 149 of the Criminal Offences Act, 1960 (Act 29).Section 150 of Act 29 defines robbery as follows: “A person who steals a thing is guilty of robbery if, in and for the purpose of stealing the thing, he uses any force or causes any harm to any person, or if he uses any threat of criminal assault or harm to any person, with intent thereby to prevent or overcome the resistance of that or of any other person to the stealing of the thing”. The case of KwakuFrimpong @Iboman v the Republic[2012] 1 SCGLR 297 sets out the elements of robbery as follows;‘For the offence of Robbery, it is important to establish the following ingredients:- a. That the appellant stole something from the victim of the robbery of which he is not the owner. b. That in stealing the thing, the appellant used force, harm or threat of any criminal assault on the victims. c. That the intention of doing so was to prevent or overcome the resistance. d. That this fear of violence must either be of personal violence to the person robbed or to any member of his household or family in a restrictive sense. e. The thing stolen must be in the presence of the person threatened. Further to this, in the case of, Razak and Another v the Republic [2010] 2SCGLR 750 the Supreme court requires as follows, “In every criminal trial it is not only necessary for the prosecution to prove the commission of the crime, but also to lead evidence to identify the accused as the person(s) who committed it. That was of a very crucial importance for a proven case of mistaken identity is a good ground for reversing a conviction for a crime on appeal. Thus where the ground of appeal bothers on mistaken identity, a trial or appellate court ought to carefully examine the evidence on it. A judge is to guide himself by considering factors such as the period of time over which the witness saw or observed the accused (appellants in this appeal), the 5 | P a g e conditions in which the observation was made, whether or not the area or vicinity was lit to make the observation possible, the distance between the witnesses and the appellants, or whether or not the description by the prosecution witnesses agreed with that of the appellant(s). On this see the guidelines by Lord Widgery CJ in R v Turnbull [1977] QB 224. The identification may take various forms. In ‘Phipson on Evidence’ (10th ed.) p 170 paragraph 1381, it is stated: ‘When a party’s identity with an ascertained person is in issue, it may be proved or disproved not only by direct testimony, or opinion evidence, but presumptively by similarity or dissimilarity of personal characteristics: e.g. age, height, size, hair, complexion, voice, hand- writing, manner, dress, distinctive marks, faculties, or peculiarities including blood group, as well as of residence, occupation, family relationship, education, travel, religion, knowledge of particular people, places, or facts, and other details of personal history.’ ... Thus, it is fair and reasonable to say that the modes of identifying the perpetrators of a crime vary and holding an identification parade may be one of the acceptable modes. Another may be by proof of personal characteristics or peculiarities like the height of the person given by the oral evidence by prosecution witnesses on oath in court.” The Court has observed that during their cross-examination of PW1, the Appellants challenged PW1 that they were not the persons that attacked the Complainant. The Appellants further insisted during their defence that their identities had been mistaken (See pages 23 to 29 of the Record of Appeal). In this court’s opinion, this should have put the trial court on notice to ascertain whether the Appellants had been duly identified in the manner set out in Razak and Another v the Republic supra. The Court however does not find this in the judgment of the trial court. In spite of the above, the trial judge convicted the first Appellant herein because according to the judgment, it was reasonably probable that the complainant identified him (See page 30 of the Record of Appeal). Being a criminal trial, the duty cast on the prosecution is proof beyond reasonable doubt and not a reasonable probability. In respect of the 2nd Appellant who allegedly wielded a cutlass. The facts indicate that the cutlass was retrieved by police however that cutlass was not tendered in evidence. This 6 | P a g e should have raised a reasonable doubt in the mind of the trial court why the cutlass which was the basis of his sentence was not produced to the court. Beyond the above errors, the Court will proceed to consider the investigation cautioned statements of the Appellants admitted as Exhibits B,C,D during trial. From the investigation cautioned statements, all the Appellants herein confessed to the commission of the offence. During trial, the confession statements were admitted into evidence without objection. The Appellants however during their defence intimated that the statements obtained were not voluntary and further that the independent witness did not understand the language spoken by the Appellants. Indeed, per Section 6(1) of the Evidence Act 1975 (NRCD 323), the law provides that, ‘In an action, and at every stage of the action, an objection to the admissibility of evidence by a party affected by that evidence shall be made at the time the evidence is offered.’ The Appellants did not make any objection at the time the statements were offered, however in view of their subsequent challenge of the contents, the duty of any court is to determine what weight to put on those statements. In the case of Antoh v the State [1965] GLR 676 the Supreme Court explained that a‘…statement though admitted as having been voluntarily made, may nevertheless he worthless in evidential value. It is therefore incumbent on a court, after admitting a statement in evidence, as made voluntarily, to direct itself on the issue as to the weight to be attached to the admitted statement. This is particularly so in a case like this where a defendant disputes the contents of the admitted statement. In the judgment of the trial court however, much weight was placed on the cautioned statement as the basis of the conviction of the Appellants herein. Considering that, the defence raised by the Appellants indicated that the confession statements did not meet the requirements of Section 120 of the Evidence, it is the opinion of this court that the trial court ought to have attached little weight to the cautioned statements admitted by the police, especially because the accused persons were unrepresented during the trial. 7 | P a g e It is the humble opinion of this court that the conviction by the trial judge placed a lower burden on prosecution as regards the identification of the Appellants, the court failed to adhere to the principles of identification of Razak and Another v the Republic supra. Further, material evidence, the cutlass used by the second Appellant, which had been allegedly retrieved was not tendered in evidence. Yet the trial court convicted the 2nd Appellant based on evidence that had not been tendered in court. Again, the cautioned statements had been disputed by the Appellants and yet the court ought to have little weight to same. Proceeding to convict them in spite of this constitutes an error of law which has occasioned a substantial miscarriage of justice. Consequently, the Appellants are hereby acquitted and discharged of both charges. CONCLUSION The appeal against conviction succeeds HIS LORDSHIP JUSTICE A. YUSIF ASIBEY HIGH COURT JUDGE COUNSEL KINGSLEY KANTON ESQ. FOR APPEALLANTS MIRIAM AMOAKO FOR THE REPUBLIC 8 | P a g e