Sakyi And Another Vrs Republic (CC/15/2024) [2023] GHAHC 642 (20 November 2023)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE, HO (COURT ‘1’) HELD ON MONDAY 20TH NOVEMBER 2023 BEFORE JUSTICE JOHN EKOW MENSAH, J. CASE NO. CC/15/2024 1. ZIKPUITOR MICHAEL SAKYI : APPELLANT 2. LUCY SAKYI Versus THE REPUBLIC : RESPONDENT JUDGMENT This is an appeal against the conviction and sentencing of the Accused persons in the judgment of the Kpando Circuit Court delivered on 19/07/2023. At page 1 of the Records can be found the charges against the accused persons this: 1. Threat of Death contrary to section 75 of Act 29/60 against A1. 2. Assault: Contrary to section 84 of Act 29/60 against A2. 3. Offensive conduct conducive to Breaches of the Peace: Contrary to section 207 of Act 29/60 against both accused persons. Accused persons pleaded Not Guilty to all the charges. The facts of this case as presented by the Prosecution can be found at page 3 of the record. At the end of the trial, the trial judge convicted A1, the appellant herein on the charge of threat of death and sentenced A1 to 2 years imprisonment. At page 83 of the records, the learned trial judge declared that: “In sentencing A1 over the threat of Death, the Court has taken into consideration the plea on mitigation and the provisions of section 296 (2) of Act 30/60. A1 is hereby sentenced to prison for two (2) years as a deterrent to threat of death cases that abound in this jurisdiction”. Dissatisfied with the conviction and sentencing of A1, Counsel for A1 has launched this appeal against the decision of the Circuit Court, Kpando. Appellant’s Grounds of Appeal that can be found at page 32 of records are: 1. The conviction is manifestly not supported by the evidence on record. 2. The sentence is harsh having regard to the circumstances of the case. 3. Other grounds may be filed upon receipt of the record of appeal. In fact, no further grounds of appeal was filed by Appellant’s Counsel. In the famous case of Dexter Johnson v. The Republic [2011] 2 SCGLR 601 @606, the Supreme Court laid down the procedure for the Appellate Court in hearing criminal appeals. The Supreme Court held that an appeal is by way of re-hearing where the appellate Court has the power either to maintain the conviction and sentence or set it aside and acquit and discharge, or increase or decrease the sentence. The Appellate Court as in this instance is therefore obliged to consider the evidence in the record of appeal in its entirety and determine whether the relevant evidence before the trial Court was considered by the trial Judge. The Appellate Court is also obliged to examine whether the trial Court’s decision was based on the relevant laws pertaining to the case and whether there was no misapplication of any available laws. I now proceed to examine the grounds of appeal as canvassed by the Appellant’s Counsel. Appellant’s Counsel apparently settled on two Grounds of Appeal: 1. That the conviction is manifestly not supported by the evidence on record. 2. The sentence is harsh having regard to the circumstance. 1. That the Conviction is Manifestly not Supported by the Evidence on Record. On this ground, Appellant’s Counsel has submitted in his 54-paragraphed Written Submission has argued rather forcefully that the words used by the accused on the complainant must not be construed to mean that accused intended to kill the complainant. Relying on both external and internal legal authorities, Applicant’s Counsel submits in his paragraph 42 thus: “Since criminal force or harm requires an apprehension of immediate violence, a threat to injure in the future is not a criminal offence, much more when such a threat is made contingent upon occurrence or non- occurrence of some event in the future.” On line six (6) of the facts of the case, the Prosecutor has studied that: “On 19/12/2021 at about 7:30 am, the Complainant was on her way to the thanksgiving service of her late daughter, Mamaga Diawusie III, Queen mother of Kpando Aziave who was buried the previous day. She met the 1st accused person and without any provocation, he rained insults on her to wit “Awla Yawa, a town destroyer, Fodome Woman, go to your hometown and if you refuse to go to your hometown, I will make sure I kill you, foolish woman, stupid thief, you are responsible for all the misfortune and deaths in Aziave town, an ex-convict among others”. Based upon these utterances, the Prosecution levelled a charge of threat of Death against the Appellant herein. Section 75 of Act 29/60 states: A person who threatens any other person with death to put the person in fear of death commits a second-degree felony. For the Prosecution to succeed in securing conviction on the charge of Threat of death, the following ingredients that constitutes the charge must be proved beyond reasonable doubt. These are: 1. There should be threat of death issued by the accused. 2. That the accused intended to put the victim in fear of death. 3. That the victim was affected or threatened with the threat of death from the accused. It is important to note from the records of appeal that nowhere during the trial did the appellant deny that he uttered the words attributed to him. It is also instructive to note that section 11 of Act 29 states: “Where a person does an act to cause an event, that person intends to cause that event within the meaning of this Act, although in fact, or in the belief of that person or both in fact and also in that belief, the act is unlikely to cause or to contribute to cause the event.” In the view of this Court, the facts as presented by the Prosecution stoutly support the charge of Threat of Death against the Appellant. If the words attributable to the A1, when read together amounts to declaring the victim a Persona Non Grata in the vicinity. And if the evidence of PW2 is anything to go by, victim after the threat was overcome with imminent threat of death that was deepened with the assault on her by A2. The Court finds this ground of appeal stagger and fail. The learned trial Judge cannot be faulted by carrying a full trial of A1 under this charge of Threat of Death. 2. The Sentence is Harsh Having Regard to the Circumstance. I have already referred to the case of Dexter Johnson v. The Republic [2011] 2 SCGLR 601 @606 in emphasizing the duties of an appellate Court in hearing criminal appeals. In this instant case, the trial Judge did not mince words at all in assigning reason for sentencing the appellant to 2 years imprisonment. His main reason was to deter the appellant and other like-minded people from further committing this crime because it was prevalent in his jurisdiction. I, therefore, see nothing wrong in the sentence imposed on the Appellant herein. I must mention that in their respective written submissions, both the Appellant’s Counsel and the Attorney General are urging on the Court to reduce the sentence of 2 years imprisonment imposed on the appellant since both the accused and the victim are relatives. However, per the decisions in landmark cases like Kamal v. Republic [2011] SCGLR 300; and Kwaku Frimpong @ Iboman v. Republic, the appellate Court can tamper with the period of sentencing on the grounds of an intervening fact. That is why this Court will also leave the trial Court’s sentencing to remain unscathed. This ground of appeal also fail. In effect, the appeal fails in its entirety and the judgment of the Trial Circuit Court is allowed to stand. (Sgd.) John Ekow Mensah, J. High Court (1) Ho. Lawyers: 2 Ms. Celestina Arku (Asst. State Attorney) for the Republic. Mr. Emile Atsu Agbakpe for Nelson M. Kporha, Esq. for the Appellant. 6