REPUBLIC VRS. NARWOTEY AND OTHERS (D7/02/2023) [2024] GHAHC 74 (27 March 2024)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE SITTING AT KOFORIDUA ON WEDNESDAY 27TH DAY OF MARCH, 2024 BEFORE HER LADYSHIP JUSTICE GIFTY DEKYEM (MRS.) SUIT NO. D7/02/2023 THE REPUBLIC RESPONDENT VS 1. NATHANIEL NARWOTEY (ALITSE) APPELLANT 2. KWAKU 3. ISAIAH AT LARGE AT LARGE PARTIES: Appellant present COUNSEL: Samuel Ofosu Asamoah ESQ. for Appellant (Absent) Cephas Kwasi Ayidzoe ESQ. holding brief for Gloria Teye ESQ. for Respondent JUDGMENT The Appellant then accused was charged with two counts of offences as follows: COUNT ONE STATEMENT OF OFFENCE Page 1 of 6 DISHONESTLY RECEIVING PROPERTY CONTRARY SECTION 146 OF ACT 29/60 PARTICULARS OF OFFENCE Nathaniel Narwotey @ Alitse, age 40, farmer; on the 3rd day of February, 2023 at Atobriso in the Eastern Circuit and within the Jurisdiction of this Court, you dishonestly received 29 bunches of palm fruits valued GHS1,170.00 the property of Ghana Oil Palm Development Company (GOPDC) which you knew to have been obtained or appropriated by means of crime to wit: stealing COUNT TWO STATEMENT OF OFFENCE ROBBERY CONTRARY TO SECTION 149 OF ACT 29/60 AS AMENDED BY THE CRIMINAL CODE AMENDMENT ACT, 2003 (ACT 646) PARTICULARS OF OFFENCE Nathaniel Narwotey @ Alitse, age 40, farmer; on 3rd February, 2023, you dishonestly appropriated a Royal Motorbike with registration No. M-22-GE 2207 valued GHS5,800 by the use of criminal force, threat and swinging a cutlass with intent to prevent or overcome the resistance of one Emmanuel Koranteng to your stealing the above-mentioned motorbike. The Appellant was arraigned before the Circuit Court at Asamankese with the above charges. The record of proceedings shows that the Appellant who was unrepresented pleaded guilty with an explanation to count one and guilty simpliciter on count two. The Appellant’s explanation in respect of his plea of guilt to count one was recorded as follows: Page 2 of 6 On that Friday I was in the house at 10:00 a.m. when the complainant came that the palm fruits in my house is for GOPDC. I told the complainant and his colleagues that the palm fruits belonged to me and that I bought the palm fruits from some farmers. They then left to town. I was in town when my wife called that the GOPDC officers and police had come to take the palm fruits away. When I got back to the house I got angry so I took a cutlass and went to complainant’s house. I told him that since they had come for the palm fruits I would also take his motorbike. So, I took it away, later the next day, I took it to the police. The trial judge after considering the above explanation held that the explanation was inconsistent with the plea of guilty and entered a plea of not guilty in respect of count one. The Appellant was however convicted on his plea of guilty in respect of count two. Subsequently, the prosecution withdrew count one which was struck out as withdrawn. The trial court after taking into consideration mitigating factors such as the Appellant being a first-time offender, not wasting the court’s time by pleading guilty and his resolve not to repeat the offence was sentenced to 15 years imprisonment IHL on count two. It is against this conviction and sentence that the Appellant filed an appeal petition on the sole ground that, ‘the verdict of the trial court cannot be supported having regard to the evidence.’ It is trite learning that when an appeal is mounted on the ground that the conviction and sentence cannot be supported by the evidence on record, the appellate court is called upon to examine the entire evidence to ascertain whether or not the evidence on record supports the conviction and sentence. In the instant case, the Appellant was not tried by way of adducing evidence by the prosecution and the defence. The Appellant was convicted on his plea of guilty in respect of count two. The Appellant was charged under section 149 of Act 29 which stipulates that: ‘A person who commits robbery commits a first-degree felony.‘ Robbery is defined under section 150 of Act 29 as follows: Page 3 of 6 A person who steals a thing commits robbery (a) if in, and for the purpose of stealing the thing, that person uses force or causes harm to any other person, or (b) if that person uses a threat or criminal assault or harm to any other person, with intent to prevent or overcome the resistance of the other person to the stealing of the thing. A person steals who dishonestly appropriates a thing of which that person is not the owner. Robbery is established where the stealing is committed with force, harm, or threat with intent to prevent or overcome the resistance of another to the stealing of the thing. From the explanation given by the Appellant albeit in respect of his guilty plea on count one, his explanation negates a guilty plea of count two. A fundamental ingredient of dishonest appropriation of the motor was conspicuously missing. Appellant’s explanation suggests that he went to the complainant’s house, not with the intent to steal but went there as a result of his palm fruits having been collected in his absence. The appellant stated that he took the motorbike because his palm fruits had been taken. This does not accord with the ingredients of stealing, an element needed to establish robbery. The facts therefore do not support the guilty plea of robbery. Section 171 of Act 30 provides on how an accused is called upon to plead in a summary trial as follows: (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. Page 4 of 6 (2) In stating the substance 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. (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. (Emphasis added). Although he explained his guilty plea in respect of count one, his explanation negated the plea of guilty in respect of count two. There is sufficient cause contrary to a guilty plea to robbery. It was held in Darkurugu vs. The Republic [1989] DLHC577 that: once there were some facts which would negate a plea of guilty the court ought not to accept the plea of guilty and if it is so wrongly accepted a conviction thereon would be set aside. An appellate court on hearing any appeal before it in a criminal case shall allow the appeal if it considers that the verdict ought to be set aside on the ground that it cannot be supported having regard to the evidence or that the judgment in question ought to be set aside on the ground of a wrong decision of any question of law or fact or that on any ground there was a miscarriage of justice. It is the opinion of the this court that with the explanation offered by the Appellant a plea of guilty should not have been recorded but rather a plea of not guilty. In light of the above discussions, both the conviction and sentence are hereby set aside and the Appellant acquitted. The appeal succeeds accordingly. Page 5 of 6 Justice Gifty Dekyem (Mrs) Justice of the High Court, Koforidua, Eastern Region Cases cited: Darkurugu vs. The Republic [1989] DLHC577 Page 6 of 6