DUMBA VRS REPUBLIC (UW/WA/HC/F22/19/2022) [2024] GHAHC 339 (16 April 2024)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE HELD AT WA ON FRIDAY 19TH APRIL 2024 BEFORE HIS LORDSHIP JUSTICE A. YUSIF ASIBEY HIGH COURT JUDGE SUIT NO. UW/WA/HC/F22/19/2022 HAKIM DUMBA VRS THE REPUBLIC BACKGROUND - - JUDGMENT APPELLANT RESPONDENT This is an appeal against the judgment of the Circuit Court, Wa delivered on 29 November 2022 against the Appellant wherein the Court convicted and sentenced the Appellant to a prison term of 15 years on one count of robbery. The facts presented to the Circuit Court shows that the Complainant, Madam Hadiza Ibrahim on the 1st day of February 2022 was riding her sister’s Haojie motorbike with registration number M-22-UW 126 to school when she was accosted by two assailants who demanded that she stopped but she failed to heed the warning. As a result the pillion rider held on to her motorbike and kicked the back tyre of same causing her to fall off. She struggled with the said assailant until he removed a cutlass and a gun which frightened her and caused her to give up the motorbike together with other valuables to the robbers. The facts further show that the police investigated another robbery case 1 | P a g e against the Appellant and his co-accused out of which the motorbike of Madam Hadiza was retrieved from the room of the co-accused person. She was invited to the police station to identify her bike. On reaching the station she identified the Appellant as the one who attacked her and robbed her of her belongings. Whilst the cautioned statement of the co-accused indicated that the bike was sold to him by the Appellant, the Appellant also in his statement denied same and stated that it was rather the co-accused person who brought the said bike to him and requested for his assistance in registering same with the DVLA, Wa. CASE PROGRESSION The plea of the Appellant was taken on 13 May 2022 where the Appellant pleaded ‘not guilty’ to the charge of robbery. Case management was slated for 14 June 2022 and same concluded on 13 July 2022. From the record, the Complainant testified as PW1 between the 13th of July 2022 and the 30th of September 2022. PW2, Ivan Mensah (the Investigator) was sworn in on 4th October 2022 and was cross-examined the same day after which prosecution closed its case. In line with Section 173 of Act 30, the trial court suo moto found that a prima facie case had been made out against the accused persons and invited them to open their defence. The Appellant as A1 then opened his defence on 19th October 2022. On the same day he was cross examined by prosecution and A2. On 24th October 2022, the Appellant’s witness Aminu Abdul Salam testified and was cross-examined on the same day. The cross- examination of the said witness ended on 1 November 2022 after which A2 opened his defence. After A2 closed his defence, the matter was slated for 29 November 2022 for judgment. 2 | P a g e On the said date the trial judge delivered the judgment of the court, the subject matter of this appeal. The said judgment is found at pages 127 -140 of the Record of Appeal. THE LAW One of the clearly settled principles of law which admits of no controversy is that an appeal is by way of re-hearing. The import of this principle was explained in the case of AMANKWAH V THE REPUBLIC UNREPORTED CRIMINAL APPEAL NO. J3/04/2019 DELIVERED ON 21 JULY 2021 by Dotse JSC as follows: ‘In essence, what this means is that, as an appellate court, whenever an appeal comes up for hearing, the appellate court must consider its task as re-hearing of the case. The appellate court must put itself in place of the trial court….. and consider in detail whether the trial of the Appellant conformed to settled principles governing the proof of criminal cases by the prosecution and this must be based on settled time tested principles of proof beyond reasonable doubt.’ In RAHIM IBRAHIM & 3 ORS V THE REPUBLIC UNREPORTED CRIMINAL APPEAL NUMBER H2/2/2017 DELIVERED ON 18TH JULY 2017, Ackah-Yensu JA echoed the principle as follows: ‘What is meant by the principle that an appeal is by way of a re-hearing is that the appellate court has the powers to either maintain the conviction and sentence, or set it aside and acquit and discharge, or increase or reduce the sentence. It is the duty of this Court to consider in its entirety the appeal record before it, and substitute itself as the trial court.’ ANALYSIS OF GROUND OF APPEAL The Appellant appeals against his conviction and sentence on two grounds namely that: 1. The judgment of the trial court is against the weight of evidence adduced at trial; and 3 | P a g e 2. The judgment is a grave error of law patent on the face of the record and same should be set aside. Counsel for the Appellant in his submissions filed on 8 March 2023 argues the following points: a. That record of proceedings as compiled was not a true reflection of counsel’s submissions; b. A2 failed to lead evidence to show that he purchased the motorbike from the Appellant; c. That the trial court made prejudicial statements which can be found at page 138 of the record of proceedings; d. Prosecution failed to discharge the burden of proof; e. The Appellant pleaded alibi which the Investigator failed to investigate; f. The identification of the appellant was not sufficient enough in law. It is important to stress that in criminal appeals it is improper to allege that a ruling or judgment is against the weight of evidence. The proper ground of appeal in criminal trials is that the ruling or judgment cannot be supported having regard to the evidence on record as expressed under Section 31(1) of the Courts Act 1993. This position was expressed in Nyame v The Republic [1971] 2 GLR 140 as follows: 4 | P a g e In a criminal appeal it was not a proper ground to allege that ‘the verdict is against the weight of evidence’. The correct ground as required under the Courts Decree, 1966 (NLCD 84) para 13(1) should be that “the verdict… is unreasonable or cannot be supported having regard to the evidence.” In Akpeena v The Republic Criminal Appeal number H2/23/2018 dated 13 February 2020 Adjei JA said that: The omnibus ground in civil matters is that the judgment is against the weight of evidence on record while that of criminal appeal provides that the verdict is unreasonable or cannot be supported having regard to the evidence. The omnibus ground of appeal in civil appeals and criminal appeals are stated differently but in substance both of them require an appellate court to hear all the evidence which were not properly evaluated in accordance with law to properly evaluate them and correct all the errors committed by the court below… See also Robert Gyamfi (alias Appiah) v The Republic Criminal Appeal Suit No. H2/02/12 dated 27 February 2019, Kombat Ezekiel v The Republic Criminal Appeal No. H2/01/2016 dated 14 June 2016 What does this mean for the Appellant? In Prince Ntim v The Republic Suit Number CR/18/2017 dated 30 May 2019, the Court of Appeal held as follows: Section 31(1) (a) of the Courts Act, 1993 (Act 459) is the basis for the omnibus ground in criminal appeals. Consequently, the acceptable omnibus ground of appeal in criminal appeals is that the judgment is unreasonable or cannot be supported having regard to the evidence on record. We are satisfied that the first 5 | P a g e ground of appeal filed by the Appellant is unknown to criminal appeals and it is hereby struck out as incompetent. Counsel in filing an appeal must know the appropriate grounds to craft and file. An appeal is a creature of statute and where particular grounds of appeal are not admissible or allowed, a court on its own cannot substitute the proper ground of appeal for the wrong one filed by counsel. However, in the case of Eric Asante v The Republic [2017] Appeal No. J3/7/2013 dated 26 January 2017, the Supreme court faced with a similar situation amended the ground in order to do substantial justice to the case. See also Emmanuel Agyare v The Republic Suit No. H2/12/2019 dated 27 May 2021 where the Court of Appeal adopted the substantial justice principle to amend a ground of appeal to read that the sentence imposed on the Appellant was harsh and excessive. Since I am bound by the provisions of Article 129(3) and 136(5), I shall also amend the first ground to read that the judgment cannot be supported having regard to the evidence in order to do substantial justice to the case. Counsel argues that he cautioned the trial judge to record verbatim all his submissions but these were not adhered to. Counsel relied on the decision in Cruishank v COP [1963] 2 GLR 369, to say that the failure to so record vitiates the whole proceedings and makes the Record of Appeal incomplete. This court notes that in arguing the above point, counsel for the Appellant is silent on what he said at the trial court that he found to be excluded by the trial judge in the Record of proceedings. Therefore, as to whether the supposed omission was relevant in determining the issues before the court or not, this court is unable to tell. I am guided by 6 | P a g e the dictum of Wood CJ in John Bonuah v The Republic that “it is not every missing part of the trial record that would prejudice a merit-based determination of an appeal, but only that which is vital to its fair, just and conclusive determination”. In the absence of any indication as to what was omitted, this court is unable to make a determination as to whether the purported omitted submission was vital to the case at the trial court. In any case, is a request for verbatim transcription of submissions of counsel not too onerous on courts within this jurisdiction? Is that the requirement prescribed by law? Even in the case cited by counsel, the court did not place a duty on the magistrate to record verbatim the submission of counsel. In S v Chabedi 2005 (1) SACR 415, the SA Supreme Court of Appeal held as follows: On appeal, the record of proceedings in the trial court is of cardinal importance. After all, that record forms the whole basis of the rehearing by the Court of Appeal. If the record is inadequate for a proper construction of the appeal, it will, as a rule, lead to the conviction and sentence being set aside. However, the requirement is that the record must be adequate for proper consideration of the appeal; not that it must be a perfect recordal of everything that was said at the trial. As has been pointed out in previous cases, records of proceedings are often still kept by hand in which event verbatim record is impossible In the Ghanaian case of John Bonuah v The Republic the court held that: The cardinal principle is that the law does not demand a hundred percent perfect record of proceedings, but such adequate record that can answer to the issues raised on appeal. 7 | P a g e From the above cases, it can be said that a verbatim transcript of the trial process is not a requirement. Rather, the record of proceedings must be sufficient to enable the appellate court discharge its duty of ‘rehearing’ effectively. Since the Appellant fails to point this court to the submissions the trial court omitted to record for the court to evaluate its relevance to the case, the court shall dismiss this ground as unmeritorious. Counsel for the appellant argues that A2 failed to lead evidence to show that he purchased the motorbike from the Appellant. Counsel submits that the trial judge found that the Appellant sold the motorbike to A2 even though A2 failed to produce witnesses to the supposed sale of the motorbike or receipts evidencing the said sale. Counsel argues that had the trial judge evaluated the evidence, he would have come to the conclusion it was rather A2 who robbed PW1 and not the Appellant. I have read the judgment of the Circuit Court thoroughly, and nowhere did the trial judge find that A2 purchased the motorbike from the Appellant. Rather, the trial judge found that no evidence had been led by prosecution against A2 to secure a conviction. Thus A2 was acquitted and discharged for the failure of prosecution to lead evidence on the charge leveled against him and not because of the claim that the Appellant sold a motorbike to him. Conversely, the Appellant was convicted after the trial judge had considered each element of the offence of robbery and found that prosecution had proved its case beyond reasonable doubt. In Kwaa Arku-Korsah v Kweku Mensah (substituted by Kobena Korantsen & 37 ors) Suit No. H1/17/2018 dated 2 May 2019, the Court of Appeal held that: The general principle of law is that an appeal is by way or rehearing…. Therefore any ground of appeal should be directed against either a comment or a decision 8 | P a g e rendered by the court. Where an appellant files a ground of appeal and that ground cannot be discerned from the record it is not sustainable. Though the above is a civil appeal, the principle espoused therein holds good in criminal appeals. This is because the court is bound by the record and ought to determine from the record whether the decision arrived at could not be supported by the evidence adduced at trial. Thus, if in the judgment, the trial court never found that A2 bought the motorbike from the Appellant, then same cannot be raised to justify why the Appellant’s conviction should be set aside. The court therefore finds no merit in this ground. The Appellant again argues that the trial court made prejudicial comments at page 138 of the Record of proceedings. For the purposes of this appeal, the exact statement complained of shall be reproduced. It is important to note that all prosecution witnesses gave evidence on oath and spoke passionately recounting the events of that gory eventful morning. I find their accounts and answers under cross examination to be positive, straight to the point and convincing unlike the accused who laid his hopes all hinged on counsel as if he was on the field with him. To the appellant, the underlined statement was a show of bias against him. In Adzaku v Galenku [1974] 1 GLR 198, the Court, speaking on judicial bias held as follows: To disqualify the trial magistrate and invalidate his decision, the allegation of bias must be supported by evidence. A mere or reasonable suspicion of bias was not enough: the law recognized not only actual bias but that interest, other than interest of a direct pecuniary or proprietary nature, which gave rise to real likelihood of bias. Without more, the conduct of the trial magistrate could not 9 | P a g e support the charge of bias and sinse there was no foundation in the allegation of bias, the trial magistrate was right in dismissing the application. In the recent Supreme Court case of The Republic v High Court Accra (General Jurisdiction 1) ex parte Anas Aremeyaw Anas Civil Motion Number J5/72/2023 dated 28 February 2023, Asiedu JSC opined as follows: It is the duty of trial judges to make specific findings of fact on each of the issues and facts in contention before the court. Findings of fact are not made by the bare and naked repetition, either in summary form or by the wholesale repetition on paper of the testimonies of the parties and their witnesses. Findings of fact are made by a critical analysis and evaluation of the evidence given by the parties and their witnesses vis-à-vis the claims and defences put forward by them in each case with the correct application of the rules and defences put forward by them and in each case with the correct application of the rules of procedure and evidence as well as the substantive law on each subject and finally showing which of the competing evidence is to be believed or preferred against the other with the reasons assigned for each preference. This court takes note of the fact that on the same page 138, the trial judge had found that the Appellant had been identified by PW1 as the person who robbed her before the supposed prejudicial text was made. Flowing from his findings, the trial judge continued to evaluate the testimonies of the witnesses for prosecution and arrived at a conclusion they were credible. Thus, to the court, the underlined statement was no more than a comparison between the credibility of the prosecution witnesses and the Appellant. Furthermore, the import of the underlined statement was that the Appellant made no 10 | P a g e effort through his testimony to assist the court in believing his testimony but rather put the burden on his counsel entirely to do. It may be that counsel may not have liked to be associated in any form with robbery but I believe that was not the import of the statement of the trial judge. This court therefore finds that the above statement, however strong or inappropriate it may have been to counsel was not tainted with bias or prejudice to warrant the setting aside of the conviction of the Appellant. Counsel for the Appellant again claims that the Appellant pleaded alibi which the investigator failed to investigate. The law provides the procedure to be followed when an accused persons intends to plead the defence of alibi. Section 131(1) of the Criminal and Other Offences Procedure Act (Act 30) reads: 131(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 the 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 cases of trial has been committed. In Razak & Another v The Republic, Criminal Appeal No. J3/6/2011 dated 25 April 2012, the court expressed that although there was no prescribed form for the notice to the prosecutor in respect of an alibi, an accused person could give the required notice and particulars in his investigative cautioned statement to the police. I have perused the Investigation Cautioned Statement and the Charge Cautioned Statement of the Appellant 11 | P a g e and nowhere in the statements have alibi been alluded to. Again, prior to the 13th day of July 2022 when PW1 was sworn in for the first time, there is no indication in the slightest that counsel raised or gave notice of alibi to prosecution. In fact, the record is clear at page 89 that counsel had no issues at the time. Furthermore, the testimony of PW2 shows that he requested both Appellant and A2 to produce witnesses to back their claims but they failed to produce any witnesses. In Darkwah & Another v The Republic [1973] 1 GLR 431, it was held that the failure to give notice of alibi as required by section 131 of Act 30 was a good ground for suspecting it to be untrue. This court is convinced that the Appellant had no alibi. He did not raise it before trial. He failed to raise it before PW1 testified and also failed to raise it in his evidence. If indeed he had one, nothing prevented the Appellant from calling as a witness, the person he was with at the time of the incident. The record however shows that the Appellant decided to call one Aminu Abdul Salam who in his cross-examination admitted knowing nothing about this instant case but another matter in which the Appellant had been implicated in. This is what transpired during cross examination: Q. I put it to you that you came to this court to lie you have no knowledge about the case A. It is your case that I don’t have details ok but on our case I have more information (page 120 of the Record of Appeal) In the absence of any evidence on record, this court finds no truth in the assertion by counsel that the defence was raised. Accordingly, this ground fails. 12 | P a g e On the issue of identification, counsel submits that no evidence was led as to the identification of the appellant especially when the Appellant denied the offence and stated persons, he was with at the time the offence was committed. This court has already found that the Appellant did not plead alibi thus the only point worth considering is whether evidence was led to establish the identity of the Appellant. In Dogbe v The Republic [1975] 1 GLR 118, the court established that in criminal trials, the identity of the accused as the person who committed the crime might be proved either by direct testimony or by circumstantial evidence of other relevant facts from which the identity might be inferred by the court. In paragraph 10 of the witness statement of PW1, Hadiza Ibrahim, she indicated that the Appellant was wearing a nose mask at the time of the incident however she could easily identify him by his stature (page 47 of the Record of Appeal). She further stated at paragraph 16 of her witness statement that she was able to identify the Appellant without any difficulty on 27 April 2022 when she was called to the police station. During cross- examination, PW1 remained insistent it was the Appellant who robbed her of her belongings that fateful day. Even when she was accused of concocting a story against the Appellant, PW1 remained emphatic her identification of the Appellant was made before she knew the motorbike was with him. The testimony of PW1 is further corroborated by PW2 when he stated during cross examination that immediately PW1 entered the police station to identify her motorbike, she identified the Appellant as the one who robbed her (page 106 of the Record of Appeal). Besides the above, PW1 when she was cross-examined by A2 as to who robbed her had this to say: 13 | P a g e Q. When you came to the police station did you see me A. Yes I saw you Q. But you identified A1 as the one who robbed you A. Yes I did Q. It was because I was not part that you could not identify me to the police A. A1 I could easily identify because I interacted with him in the process but the other I cannot tell if you were the one or not. (pages 102-103 of the Record of Appeal) This, to this court, was direct testimony as to the assailant being the Appellant herein. It is therefore interesting that counsel in his submission asserted no evidence was led on identity. As rightly cited by counsel, the case of Adu-Boahene v The Republic [1972] 1 GLR 70, there is no better proof of the identity of a perpetrator of a crime than the evidence of a witness who swears to have seen him committing the offence. And therefore, there could not have been better evidence than from PW1 who observed the assailant and pointed him as the Appellant as soon as she entered the police station for a different purpose. From the record, PW1 remained firm it was the Appellant who robbed her that day and she was not discredited during cross-examination. This court therefore finds that the identification of the Appellant was sufficient. 14 | P a g e The Appellant finally argues that prosecution failed to meet the standard of proof required in criminal cases. It is trite learning that in criminal cases the standard of proof is beyond reasonable doubt. In Gligah & Atiso v The Republic [2010] SCGLR 870, the Supreme Court per Dotse JSC re-emphasized the point thus: “… whenever an accused person is arraigned before any court inn any criminal trial, it is the duty of the prosecution to prove the essential ingredients of the offence charged against the accused person beyond reasonable doubt.” The Appellant was charged with robbery contrary to section 149 of Act 29. In the case of Kweku Quaye alias Togbe v The Republic Criminal Appeal No. J3/08/2020 dated 28 July 2021, Prof. Mensa-Bonsu JSC outlined the elements of the offence of robbery as follows: 1. The accused dishonestly appropriated a thing not owned by him or her and in the care or custody of the victim; 2. The accused used force or harm or threat of force on the victim or on the person of another; 3. The force or threat of force or harm was intended to prevent or overcome any resistance to the stealing. The evidence shows that in February 2022, PW1 was robbed of her motorbike. The record also shows that the assailant pulled out a gun and a cutlass which signifies the threat of force to overcome the resistance of PW1 to the stealing of her motorbike. The evidence 15 | P a g e shows that PW1 identified the Appellant as the assailant when she was invited to the police station to identify her motorbike which had been retrieved from a different robbery case involving the Appellant. To the court, these ingredients had been satisfied at the close of prosecution’s case. That is why the trial judge ordered the Appellant to open his defence. The Appellant in his defence claimed it was A2 who brought the motorbike to him and requested for assistance in registering same. This claim was denied by A2 who stated that he bought the motor from the Appellant. These questions linger in the court’s mind. Why would A2 leave Kendue to Wa to seek the assistance of the Appellant rather than go to DVLA to register the motorbike if the Appellant had nothing to do with its acquisition? Why would the supposed agent Sariki go into hiding upon hearing the Appellant and A2 had been arrested? The record shows that even though the Appellant denied knowing Lassie, PW1 told the court during cross-examination that A2 challenged the Appellant on same but the Appellant never said a word to defend himself (page 92 of the Record of Appeal) This court also observes that although the Appellant claimed he was at his shop, PW2, the Investigator, during re-examination testified that the Appellant was a mechanic but had no shop (page 111 of the Record of Appeal). A2 also testified that the Appellant was a motorbike assembler who roamed to assemble (page 124 of the Record of Appeal). Since the Appellant does not have a shop, then it cannot be true A2 entered same to seek his assistance to register the motorbike. This court also cannot overlook the identification of the Appellant as the assailant by PW1 rather than A2 who was in possession of the motorbike. 16 | P a g e This court thus finds that the testimony of the Appellant is not acceptable or reasonably probable to entitle him to an acquittal. It is therefore no surprise the trial judge described his defence as hollow, bleak, shaky and unreliable. On the whole, this court finds that prosecution proved its case beyond reasonable doubt. Accordingly, the first ground as filed on the notice of appeal fails entirely. This leaves the second ground of Appeal which is that the judgment is a grave error of law patent on the face of the record and same should be set aside. It is trite learning than when a party appeals a decision on grounds of error of law, that party is required to give particulars of the said error. In Zabrama v Zegbedzi [1991] 2 GLR 221, the court emphasized that the requirement of providing particulars of an error in law or a misdirection in a notice of appeal puts the respondent and the court on notice on the particular area of law the dissatisfaction is alleged and helps to narrow down issues at the hearing of the appeal. Thus in Tetteh v T Chandirams & Co. Ltd & Ors [2017-2020] SCGLR 770, the Supreme Court struck out the defective ground of appeal because the alleged errors could not be sufficiently inferred from the wording of the ground of appeal to enable the court address same. From the notice of appeal filed by counsel on the 8th day of December 2023, counsel failed to give particulars of the alleged error on the record. Neither did he bother to argue the above ground in his written submissions. In the absence of particulars, this court strikes out this ground as defective. 17 | P a g e Therefore, upon a sober and thorough re-evaluation of the entire record of Appeal, this Honourable Court is fully convinced that it was the Appellant herein who together with one other robbed Hadiza Ibrahim of her motorbike at gunpoint. This court accordingly dismisses the appeal and affirms the conviction and sentence of the Appellant. Appeal dismissed. HIS LORDSHIP JUSTICE A. YUSIF ASIBEY HIGH COURT JUDGE COUNSEL Lwanga Bagonluri S. Esq. for Appellant. Miriam Amoako Esq., with her Frances Acquaye Esq. for the Republic. 18 | P a g e