Tumenyo & 2 Others Vrs The Republic [2023] GHAHC 245 (28 April 2023)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE HOHOE, HELD ON FRIDAY THE 28TH DAY OF APRIL 2023 BEFORE HIS LORDSHIP JUSTICE AYITEY ARMAH-TETTEH NO. F22/16/2022 TUMENYO CHARLES & 2 ORS VRS THE REPUBLIC - - APPELLANT RESPONDENT ------------------------------------------------------------------------------------------ APPELLANT PRESENT COUNSEL MR. THEOPHILUS DZIMEGA FOR THE APPELLANT MS. DINA DZIFA AMEFINUFOR THE RESPONDENT JUDGMENT The appellant, Afo Larry who was the 2nd accused in the court bellow, appeals against the conviction and sentence imposed on him on 20th day of July 2022 by the Circuit Court, Hohoe presided over by His honour Johnson Abbey for the offence of Dishonestly Receiving contrary to Section 146 of the Criminal Offences Act, 1960, Act 29. The trial Judge imposed a sentence of 10 years imprisonment on appellant, having convicted appellant upon a plea of guilty of dishonestly receiving. I have read the submissions of Counsel for both the Appellant and Respondent, and I will allow the appeal against conviction and sentence and order a retrial of the appellant. These are the reasons for coming to that conclusion. The appellant was charged with the following offence: Page 1 of 8 “Dishonestly receiving property contrary to section 146 of the criminal Offences Act 1960,( Act 29). The facts as narrated at the trial court are that, on 12th July, 2022, Police had information that the newly built bungalow for residence of the High Court Judge at Hohoe was broken into by thieves and they made away with some items. Based on the information received, Police proceeded to the place and saw the door to the room broken into and the following items stolen: 50 inches Nasco TV, a double door Nasco fridge, one queen size mattress, two double bed mattress, 2.0Hp air-condition, sink basin, sanitary ware, microwave and cables for wiring in the house. Police intelligence led to the arrest of 1st accused person Charles Tumenyo at his hideout at Hohoe Gboxome and he admitted that he and 3rd Desmond, now on the run went to the residence and stole the above- mentioned items. He and 3rd accused after the theft went and sold the items to 2nd accused, Afo Larry, the Appellant herein at Hohoe Zongo. The 1st accused person led Police to the house of the Appellant at Hohoe Zongo and he was also arrested, and the items sold to him by 1st accused retrieved from the room of the Appellant. The 1st accused and the Appellant admitted the offences in their investigation cautioned statements. After investigations they were charged with the offences and arraigned before the Circuit Court, Hohoe. When the plea of the accused persons were taken, both 1st accused and appellant pealed guilty. Upon their explanation the court entered a plea of guilty for both 1st accused and appellant and proceeded and convicted appellant on a plea of guilty and sentenced him to 10 years imprisonment. It is upon this conviction and sentence that the appellant has appealed to this court for redress. The notice of appeal filed have the following grounds: Page 2 of 8 1. That the learned trial judge should have entered a plea of not guilty on behalf of the appellant after the explanation of the appellant to the court following a plea of guilty with explanation. 2. That the learned trial judge erred when he misconstrued the statement “ I made a mistake” by the Appellant as admission of guilt. 3. That the conviction and sentence of the appellant on his explanation is therefore wrong in law and the proceedings should be set aside as null and void and of no effect. I will discuss the three grounds together as they all are to the effect that the trial was wrong in entering a plea of guilty for the appellant when his explanation was inconsistent with his guilty plea. The gist of the argument of counsel for the appellant is that the explanation given by the appellant showed that he had a defence to the offence charged and the trial court ought to have entered a plea of guilty for him and that the trial judge was wrong in entering a guilty plea for him. Counsel for the Respondent in her submission agreed with appellant’s submission and submits that the trial judge was wrong in law by entering a plea of guilty since the explanation of appellant showed that he had a defence to the charge. The law is that when an accused person pleads guilty and add words which words indicates that the accused has a defence the court should enter a plea of not guilty for the accused and proceed to trial and give the accused person the opportunity to answer to the charge . Section 199(4) of the Criminal Procedure Code 1960, (Act 30) provides as follows “Where the accused pleads guilty but adds words indicating that the accused may have a defence or so indicates in answer to the Court, the Page 3 of 8 Court shall enter a plea of not guilty and record it as having been entered by order of the Court” In The Republic v Bright [1974]2 GLR 12 the High Court presided over by Andoh J. in applying section 199(4) held that: ‘I am firmly of the opinion that in view of the explanation offered by the accused, the learned trial magistrate erred in accepting the plea of "guilty" with its resultant conviction. He was bound especially so as the accused was not represented by an advocate to have entered a plea of "not guilty" on his behalf to enable the case to be contested on its merits: see section 199 (4) of Act 30.’ In Mensah v The Republic [1989-90] 2 GLR 445-460 it was held as follows: ‘When an accused pleaded guilty and offered an explanation which made it clear that the accused was not really pleading guilty or that the said explanation was inconsistent with a plea of guilty, a plea of not guilty should be entered by the trial court on its own motion. It would be improper for the trial court to proceed to evaluate the whole case and make findings of fact as to whether the explanation by the accused was true or not; but rather it should consider whether if it were true, it provided the accused with a defence or was inconsistent with his original plea of guilty….’ In the instant appeal when the plea of the appellant was taken, he pleaded guilty with explanation. He went ahead and gave the explanation as follows: “ I did not know that they were stolen items. This is because I know the 1st accused person through his brother who is my co-worker so when they brought the items, I asked them whether they were not stolen items. They told me that they used 3rd accused person’s school fees to buy the items. They brought a certain lady that Page 4 of 8 she needs blood so they were selling the items to enable them buy blood for the girl. My Lord I made a mistake so be lenient with me.” The court after listening to the explanation said: ‘BY COURT: The explanation of the 2nd accused person that he made a mistake to buy the items from 1st and 3rd Accused persons shows that he has no defence . I therefore change his plea from Guilty with explanation to Guilty on count 5 and convict him on count 5.’ A critical examination of the explanation given by the Appellant shows that it raises a defence rather than to serve as an explanation to his admission of guilt. The trial court was therefore mandated to enter a plea of not guilty for the Appellant for the case to be tried to determine whether the defence of the Appellant is probable. The explanation to the plea of guilty raises triable issues for which evidence must be led to prove or disprove those issues. In the case of BEDIAKO V THE REPUBLIC [2010- 2012] 1GLR 566 it was stated that, “The test carried out after a plea with explanation is whether or not it constitutes an admission or commission of the offence or it constitutes a defence and a plea of not guilty should be entered. If the explanation offered by the Appellant constitutes a defence, the court is enjoined by law to proceed with hearing of the matter. It is not the duty of the court to believe or disbelieve the explanation because it is not evidence.’ Section 147 (1) of the Criminal and Offences Act, 1960 (Act 29) defines Dishonestly Receiving as; Page 5 of 8 A person commits the criminal offence of dishonestly receiving property which that person knows to have been obtained or appropriated by a criminal offence, if that person receives, buys, or assists in the disposal of the property otherwise than with a purpose to restore it to the owner. One of the ingredients of the offence of Dishonestly Receiving is that the prosecution must prove is that, the accused knows that the property have been obtained or appropriated by a criminal offence. The explanation offered by the Appellant negates this ingredient of the offence for which reason the prosecution must produce evidence to prove beyond reasonable doubts that, the Appellant knew the items he purportedly bought were stolen items. Evidence can only be adduced when the case is tried by calling upon the prosecution to open its case. The trial court said by saying “I made a mistake” shows appellant has no defence. When the appellant said “I made a mistake” it cannot be said to be an admission of the offence. This is a person who had said he did not know the items were stolen and that he made a mistake. The only conclusion that can be drawn from this statement is that appellant was showing a sign of remorse and apologetic . I agree with counsel for Appellant when he argued that the appellant was apologizing and not admitting guilt. In Regina v. Djomoh [1960] GLR 193-194, the court of appeal held that “confession of “having done wrong” accompanied by an apology, does not necessarily amount to a confession that a crime has been committed.” In the instant case when the appellant made the statement that “ I made a mistake” does not amount to a confession that a crime has been committed nor the Appellant has admitted being guilty. The trial judge was therefore wrong in concluding that the appellant did not have a defence when he said “ I made a mistake.” Page 6 of 8 In the instant appeal when the appellant was convicted on a plea of guilty with explanation in circumstances when a plea of not guilty should have been entered for the accused him, both the conviction and sentence are null and void and would be set aside. I will therefore allow the appeal and set aside the conviction and sentence. However, this Court has the mandate to order for the retrial of the Appellant. Section 30(a) (i) of the Court Act 1993, (Act 459) provides that: Subject to this Act, an Appellate court may in a criminal case, (a) on an appeal from a conviction or acquittal:- (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 in exercising my powers under section 30(a)(1) of Act 459 and order for the retrial of the Appellant at the Circuit Court. The justice of this case demands that Prosecution is granted the opportunity to prove its case against the Appellant beyond reasonable doubt. In the circumstances of this case I will allow the appeal, set aside the conviction and sentence of the appellant and order a retrial of the appellant before the Circuit Court. (SGD.) AYITEY ARMAH-TETTEH, J (JUSTICE OF THE HIGH COURT) Page 7 of 8 Page 8 of 8