APPIAH VRS. REPUBLIC (CR/0207/2025) [2025] GHAHC 67 (25 March 2025)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, LAW COURT COMPLEX (CRIMINAL DIVISION “2”) HELD IN ACCRA ON TUESDAY, 25TH DAY OF MARCH, 2025 BEFORE HER LADYSHIP JUSTICE MARIE-LOUISE SIMMONS (MRS.), JUSTICE OF THE HIGH COURT ERIC AYIMAH APPIAH VRS. THE REPUBLIC - - CASE NO.: CR/0207/2025 APPLICANT RESPONDENT ======================================= RULING ON BAIL PENDING APPEAL ======================================= The Applicant herein was put before the Circuit Court (Child-Friendly Gender-Based Violence Court), Accra on the charge of PHYSICAL ABUSE by Squeezing the neck of his wife contrary to Section 1 (b) (i) and 3 (2) of the Domestic Violence Act, 2007 (Act 732). He pleaded Not Guilty, went through a full trial and was subsequently convicted and sentenced on 27th November 2024. The sentence meted out to the Applicant was a two (2) year term of imprisonment with an additional fine of 200 penalty unit and/or in default serve a one (1) month imprisonment. The Applicant was also required to pay an amount of 500 penalty unit to the complainant as compensation. He was also to pay the complainant’s medical bills that are related to the assault in issue. Page 1 of 12 Again, the Applicant was to be enrolled to a work programme and counselling during his term of imprisonment. Final protection orders were made by the trial Court and they were for the Applicant and his family members not to commit any act that offends the Domestic Violence Act against the complainant and the children. The Applicant was also to stay 200m away from the complainant whether the children was with her or not. The Court finally ordered that the Applicant should have access to the children but outside their home as determined by the Family Tribunal and Prison authorities. THE NOTICE OF APPEAL Dissatisfied with this decision, the Applicant filed a Notice of Appeal on the 30th January 2025 pursuant to an Order for an Extension of Time. The Grounds of Appeal were as follows: a) The conviction was unreasonable and cannot be supported having regard to the evidence adduced at the trial b) That the maximum sentence of 2years together with a fine imposed on the Appellant/Applicant is excessive and harsh Page 2 of 12 c) That the learned trial judge erred in law when she relied on a report issued by Physician Assistant and not a registered Medical Practitioner contrary to the provisions of the Health Professions Regulatory Bodies Act, 2013 (Act 857) d) That the trial learned judge erred in law when she considered hearsay evidence by the PW1/Complainant that the Appellant/Applicant had previously assaulted her in fact there were no previous convictions of the Appellant relating to those assaults. Further grounds were to be filed upon receipt of the record. The said Notice of Appeal has been served on the Office of the Attorney General and an affidavit in opposition filed on the 24th February 2025. THE APPLICATION During the pendency of this Appeal, this present application was filed on 13th February 2025 on behalf of the Appellant/Applicant praying the Court to consider granting the Applicant bail pending his appeal. The said application states among others that there are exceptional or unusual grounds for the application and that the conviction is prima facie wrong and the appeal has obvious prospects of success. Paragraphs 11 to 26 provides the supposed evidence of the Applicant in support of his deposition that the conviction was prima facie wrong. It was further deposed that Page 3 of 12 the trial judge by way of sentencing committed an error by treating the Applicant as a habitual criminal without any proper basis when the Applicant was ordered to compensate the complainant in addition to serving the sentence and paying a fine. The Application also states that the trial judge erred in ordering the Applicant to serve a one (1) month sentence in lieu of payment of a fine as a fine constitute of a civil debt under Section 142 (7) (b) of Act 30. In supporting his assertion that there are exceptional circumstances warranting the grant of this application, the Applicant has stated that the 30year relation between the Applicant and the complainant, his wife and with six children between them, the marriage risk between dissolved with the children being under stress if the Applicant keeps remaining behind bars. This Court has therefore been called upon to promote reconciliation in order to bring strong family bond between man and wife and children. It has been stated that the Applicant will produce the necessary sureties when granted bail and would present himself to pursue the appeal and serve his sentence if the appeal fails. It has been finally deposed that the appeal has a bright chance of success. THE OPPOSITION The response from the Republic/Respondent as sworn to by a learned Assistant State Attorney is a vehement opposition to the application. The relevant depositions are Page 4 of 12 that there are no exceptional or unusual grounds for which reason the Applicant should be granted bail pending appeal. That the Applicant has failed to show to this Court that the trial Court committed any grave offence of the record in convicting and sentencing the Applicant. The Respondent further contends that the Appeal filed against the judgment of the trial Court has not got the slightest chance of success. Again, this present application is said not to have any stated compelling grounds which will warrant the grant of this application. Further deposed is the fact that the Applicant has not demonstrated that the nature of this case is such that it necessitate the grant of bail for him to confer with his counsel in the preparation of his appeal. That the Applicant has not shown that there will be any unreasonable delay in the hearing of this appeal which could potentially lead him to serve the whole or a substantial part of his 2years sentence in custody before the appeal is heard. The Republic/Respondent has prayed to the Court not to grant this application as the Applicant is unlikely to pursue his appeal should he be granted bail. THE ANALYSIS BY THE COURT There is statutory basis upon which a trial or an Appellate Court may grant a person sentenced by a Court of competent jurisdiction bail pending the determination of his Page 5 of 12 appeal. Under Section 33 (1) of the Courts Act, 1993 (Act 459) the Court before which a person is convicted or the Court to which an appeal is made may if it thinks fit on an application, grant bail pending the appeal. The guiding question for a Court to consider would be whether it would be absolutely unjust that the Applicant, a convicted person should continue to serve his sentence before the appeal is heard and disposed off? The guiding principles for a Court to determine in its decision to grant such an application or not has been laid out since the 1930’s, 60’s and 70’s. In the case of R VS. TUNWASHE [1935] 2 WACA 236 the principle was laid down that: 1. The bail will not be granted pending an appeal save in exceptional circumstances or where the hearing of the appeal is likely to be unduly delayed. 2. That in dealing with the latter class of case, the Court will have regard to not only the length of time which must elapse before the appeal can be heard, but also the length of the sentence to be appealed from and the future these two matters will be considered in relation to one another. Later in the case of OWUSU VS. THE STATE [1967] GLR 435, the Court of Appeal added a new principle at page 44 of the report thus: Page 6 of 12 “where the Court is satisfied that the conviction is prima facie erroneous either in law or in fact and that there will be an apparent miscarriage of justice if bail will be granted” In the OWUSU VS. THE STATE case stated supra, OLLENUU JA, has this to say in reading the judgment of the CA: “the principle to be borne is that a conviction is deemed to be right until the contrary is proved. That being the case, the grant of bail after conviction is considered an unusual thing. Hence, it is not granted unless there are exceptional and unusual reasons” In 1971, the renowned and revered Justice Taylor in FYNN VS. THE REPUBLIC [1971] 2 GLR 433, reviewing 43 local and English authorities stated the principles aforementioned and added the conditions that the bail will be granted if the case is of such a nature that it would be of real assistance for the preparation of the appeal that the Appellant should be free to confer with his counsel in order to facilitate the preparation of the appeal. He also added that the appeal may be granted if having regard to the sentence there is going to be a considerable delay in the preparation of the Record of Appeal or the hearing of the appeal is likely to delay resulting in the Appellant serving a whole or a substantial part of his sentence. Page 7 of 12 All these conditions for the grant of bail pending appeal were considered in the lead judgment of ARYEETEY JA in the case of DANIEL ABODAKPI VS. THE REPUBLIC CRIMNIAL APP MOTION H3/17/2007 delivered on the 1st November 2007. I have ably considered the application before me and the affidavit in opposition. I have also listened to and considered the viva voce submissions made before me by counsel for both parties. In this present case, the Applicant was convicted and sentenced on the 27th November 2024 and is to serve a two (2) year jail sentence and pay a fine of 200 penalty unit i.e. GHC2,400.00 or in default serve one (1) month imprisonment. The records as filed indicates that the Petition of Appeal filed as Notice of Appeal was filed on 30th January 2025 which was two (2) months after his conviction and sentence. As at now, the Applicant has served about four (4) months into his two (2) year sentence, though I concede that the sentence was short, he has not served a substantial part of his sentence and I do not envisage that he will do so before the appeal is heard. I have noted the deposition at paragraph 6 of the affidavit in support that the learned trial judge delayed in the release of the judgment to the Appellant/Applicant until a Petition was written to the Honourable Chief Justice for same to be made available. On this basis, it is presumed that an application or request was made by the applicant for a copy of this judgment as required by Section 70 (2) of the Courts Act (Act 459) Page 8 of 12 as amended which is the relevant law on access to record of proceedings. It states as follows: “(2) If a person affected by a judgment of a court desires to have a copy of the judgment, order or other part of the record, he shall on application for the copy be furnished with it if he pays its cost except where the court for some special reason thinks fit to furnish it free of charge” Per this provision, an Appellant who files a Petition of Appeal at the High Court is in addition expected to apply for a copy of the judgment or proceedings and be furnished with same. It is presumed that having requested for and obtaining the judgment of the trial Court, there would have been some evidence of such a request, it is however not evident from the present application and its annexures that any effort was made to obtain the record of appeal as well. Such a request to the registry of the trial court for same should obviously have been made in writing and exhibited for the attention of this court. I have also noted that a search was conducted with the Registry of the High Court for information as to whether the Registry of the High Court has notified the trial Circuit Court Registry of the filing of an appeal. The response to that search was that there was no such indication on the docket. Page 9 of 12 Be that as it may, the question to ask is, has the Applicant as a diligent Appellant ready to prove that the trial Court committed errors in her judgment against him proved that he is interested in pursuing the Appeal. What steps have been taken to ensure that the records are indeed transmitted for the appeal process to go on? The Applicant and his counsel are advised to bear in mind that the criminal appeal process at the High Court is not the same as those of the Court of Appeal and the Supreme Courts under the C. I 19 and C. I 16 respectively were there are elaborate rules on the roles of the Registry of the trial Court and the Appellate Courts. At the High Court, the Appellant is to play a positive role in ensuring the appeal process goes on. The Applicant is therefore advised to request formally for the Record of Appeal as required under the Courts Act afore stated and in the event that the Registry of the trial Court fails to provide same, then this Court being the Appellate Court in the interest of justice, may then, pursuant to Section 330 of Act 30, send for the record from the trial Court in support of the Appellant. Meanwhile, the Notice of Appeal filed and the detailed affidavit in support of this present application, in my considered opinion does not exhibit any exceptional grounds upon which this application should be granted. The affidavit mainly produces details of the grounds of appeal. Page 10 of 12 Of course being an appeal, there is a possibility of success. However, these depositions do not exhibit any patent error in the judgment neither does it exhibit any high likelihood of success of the appeal. I concede that this case involves a domestic issue between husband and wife and would obviously affect the children. However, it will be dangerous without any information to the contrary to grant this application basically on the ground that the wife who was the complainant and the principal witness and her children need the Appellant back at home for the purpose of reconciliation. Indeed, as it is known, many criminal offences occur in the domestic setting and if exceptions were to be made in all such circumstances in the name of reconciliation and preservation of marriages, it could pose a danger to society as well. I therefore find no exceptional circumstances for this particular case to make an exception. I believe the Applicant must pursue his appeal and as stated, if he has difficulty in obtaining the record, inform the Appellate Court who per the law is mandated to assist. There is not guarantee that if this application is granted, the Applicant will pursue the appeal. The safety of the complainant cannot also be guaranteed if this application is granted. From the above analysis and consideration of the law, the application will be refused and accordingly dismissed. (SGD) JUSTICE MARIE-LOUISE SIMMONS (MRS) (JUSTICE OF THE HIGH COURT) Page 11 of 12 COUNSEL: HENRY NII-ODAI ODAI HOLDING THE BRIEF OF AYIKOI OTOO FOR THE APPLICANT. SELASSIE KAVIANU (ASSISTANT STATE ATTORNEY) FOR THE REPUBLIC/RESPONDENT. Page 12 of 12