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Criminal law
– Robbery – Alibi - Whether the
maximum sentence for armed
robbery was obviously on the
high side - Whether conviction
of the Appellants were based on
doubtful identification –
Whether the onus was heavily on
the prosecution to prove beyond
reasonable doubts that on the
day stated in the charge sheet
- Section 149 (1) - Criminal
Offences Act 29 of 1960 the as
amended by Act 646 - Section 131
- Criminal and other offences
(Procedure) Act, 1960 Act 30,
HEADNOTES
The facts
upon which the charges were laid
against the accused were that,
in the small hours of 27th
July 2005, five men with one of
them wearing a mask, attacked
the complainants in three houses
within a 100 meters radius at
West Anaji, a suburb of Takoradi,
and succeeded in making away
with properties valued at ¢8
million the properties valued at
¢13 At an identification parade
carried out by the police, the
two accused persons were
identified by the Prosecution
Witnesses to have been some of
the culprits of the dastardly
armed robbery of 27th
July 2005 on the complainants.
When arraigned before the court
on the charges above mentioned,
each accused pleaded not guilty
to them. However, His Lordship,
sitting at the High Court,
Sekondi, tried the two accused
persons, found the guilt of each
proved beyond reasonable doubts
on each count and convicted them
accordingly; he proceeded to
mete out a sentence of life
imprisonment on each of them.
The accused were aggrieved by
the conviction and sentence, and
appealed them to the Court of
Appeal. The Court of Appeal
affirmed the conviction of each
appellant, but considered that,
much as the sentence imposed by
the trial judge was justified by
the seriousness of the offence,
the degree of revulsion felt by
law abiding citizens and the
impunity with which the offences
were committed called for severe
punishment to the appellants to
serve as a deterrent to those
who intended to engage in this
heinous crime, nonetheless, the
infliction of the maximum
sentence for armed robbery was
obviously on the high side.
HELD
I make bold
to say I have examined the
judgment under appeal, including
of course, the evidence
marshaled by both sides, but
found no such error or blunder.
Try as the appellants did, they
did not succeed in showing any.
I am not satisfied that the
Court of Appeal failed to
consider all these factors or
that, they considered irrelevant
factors or that for any
sufficient reason they did not
exercise their discretion
judicially, or that their
sentence was inordinately harsh.
In the result, the appeal
against sentence did not deserve
any favorable response by this
court. The only mitigating
factor might be that even though
they were armed, no life was
lost or any injuries were
inflicted on the hapless
victims. That alone was not
enough to persuade us to
interfere with the quantum of
sentence. In my view considering
all the circumstances of this
case, the Court of Appeal was
lenient, right and fair, in
substituting the 30 years
imprisonment for each appellant
for the life imprisonment dished
out by the trial court and this
court will not interfere with
the exercise of its discretion.
In the result, I proceed to
affirm the conviction and
sentence and dismiss the appeal
entirely.
STATUTES
REFERRED TO IN JUDGMENT
Criminal
Offences Act 29 of 1960
Criminal and
other offences (Procedure) Act,
1960 Act 30,
CASES
REFERRED TO IN JUDGMENT
R v Turnbull
[1977] QB 224.
Adu Boahene v
The Republic [1972] 1 GLR 70
Karim v The
Republic [2003-2004] SCGLR 812.
Bediako v The
State [1963] 1 GLR 48, SC
Bediako v The
Republic [1976] GLR 39
Thakur
Harihar Buksh v Thakur Umon
Parshad (1886) LR 141A7;
Robins v
National Trust Co. [1927] AC 515
Allen v
Quebec Warehouse Co. (1886) 12
App Cas 101.
Achoro v
Akanfela [1996-97] SCGLR 209;
Obrasiwa II
v Out. [SCGLR] 618; Koglex (No
2) v Field [] SCGLR;
Adu v Ahamah
[2007-2008] SCGLR 143;
GPHA &
Captain Zeim v Nova Complex Ltd.
[2007-2008];
SSB LTD. v
CBAM Services Inc. [2007-2008]
SCGLR [2007-2008] 894.
Kwashie v The
Republic [1971] 1 GLR 488, CA,
to be:
Mohammed
Kamil v The Republic
Hodgson v The
Republic ; Gligah & Atiso v The
Republic [2010] SCGLR 870.
BOOKS
REFERRED TO IN JUDGMENT
’Phipson on
Evidence’ (10th ed.)
p 170 paragraph 1381,
DELIVERING
THE LEADING JUDGMENT
ANSAH JSC:
COUNSEL
WILLIE
AMARFIO (a.k.a NII AMAR) FOR
THE
APPELLANTS.
K.
ASIAMA-SAMPONG ( PRINCIPAL STATE
ATTORNEY) FOR THE RESPONDENT.
J U D G M E N
T
ANSAH JSC:
At their
trial at the High Court,
Sekondi, each of the two accused
persons, was charged with a
count of the offence of
Count one
Statement of
offence
ROBBERY:
Contrary to section 149 (1) of
Act 29 of 1960 as amended by Act
646;
Particulars
of offence.
1 Ibrahim
Razak: 2 Kennedy Yamoah: for
that on the 27th day
of July 2005, at West Anaji, a
suburb of Takoradi in the
Western Region of Ghana and
within the jurisdiction of this
court did use force and threat
with intent to overcome any
resistance in order to steal
properties belonging to Mr. and
Mrs. Cudjoe valued at ¢8
million.
Count Two.
Statement of
offence.
ROBBERY:
contrary to section 149 (1) of
Act 29 of 1960, as amended by
Act 646;
Particulars
of offence
1, Ibrahim
Razak; 2 Kennedy Yamoah: for
that on the 27th July
2005, at West Anaji, suburb of
Takoradi in the Western Region
of the Republic of Ghana and
within the jurisdiction of this
court did use force and threat
with intent to overcome any
resistance in order to steal
properties valued at about ¢13
million belonging to Mr. and
Mrs. Ward of House Number 6/790
Street, West Anaji.
Count Three.
Statement of
offence
ROBBERY:
Contrary to
Section
149 (1) of ACT 29 of 1960 as
amended by Act 646:
Particulars
of offence
1 IBRAHIM
RAZAK 2 KENNEDY YAMOAH: for
that on the 27th of
July, 2005 at West Anaji a
suburb of Takoradi in the
Western Region of the Republic
of Ghana and within the
jurisdiction of this court did
with intent to overcome any
resistance in order to steal
properties valued at ¢5 million
belonging to Mr. and Mrs.
Aboagye of House Number PLT 48,
West Anaji.”
The facts
upon which the charges were laid
against the accused were that,
in the small hours of 27th
July 2005, five men with one of
them wearing a mask, attacked
the complainants in three houses
within a 100 meters radius at
West Anaji, a suburb of
Takoradi, and succeeded in
making away with properties
valued at ¢8 million the
properties of Mr. and Mrs.
Cudjoe, properties valued at ¢13
million belonging to Mr. and
Mrs. Ward of House number 7/90,
West Anaji, Takoradi. That same
day the two accused robbed Mr.
and Mrs. Aboagye of House Number
PLT 48, West Anaji, of
properties valued at ¢5million.
On 17th
August 2005 the 1st
accused was arrested upon a
tip-off to the police; the
second was to suffer the same
fate on 24th August
2005.
At an
identification parade carried
out by the police, the two
accused persons were identified
by the Prosecution Witnesses to
have been some of the culprits
of the dastardly armed robbery
of 27th July 2005 on
the complainants.
When
arraigned before the court on
the charges above mentioned,
each accused pleaded not guilty
to them.
However, His
Lordship Mr. Justice D. K. Ofosu
Quartey, sitting at the High
Court, Sekondi, tried the two
accused persons, found the guilt
of each proved beyond reasonable
doubts on each count and
convicted them accordingly; he
proceeded to mete out a sentence
of life imprisonment on each of
them.
The accused
were aggrieved by the conviction
and sentence, and appealed them
to the Court of Appeal.
The Court of
Appeal affirmed the conviction
of each appellant, but
considered that, much as the
sentence imposed by the trial
judge was justified by the
seriousness of the offence, the
degree of revulsion felt by law
abiding citizens and the
impunity with which the offences
were committed called for severe
punishment to the appellants to
serve as a deterrent to those
who intended to engage in this
heinous crime, nonetheless, the
infliction of the maximum
sentence for armed robbery was
obviously on the high side. The
court for this reason,
interfered with the sentence of
life imprisonment by setting it
aside and substituting it with
one of 30 years imprisonment for
each accused.
The accused
were once again aggrieved by the
judgment and went on a further
appeal to this court for the
purpose of quashing their
conviction and sentence.
The grounds
of this further appeal were
that:
“1. The
conviction of the Appellants
(sic) were based on doubtful
identification and the
benefit of the doubt should have
enured to the appellants.
2. That the
innocent discrepancies in the
police statements of the girl
friend and the New Achimota
Hotel attendant about the
departure dates were not
testimonies before the Court and
they should have had no bearing
on the case but it did.
3 It is not
likely that tall persons like
the Appellants, who would stand
out clearly easily, would
undertake an armed robbery
operation in their neighbor
hood.
Additional
grounds to be filed when the
record is available.”
None has been
filed so far at least to our
knowledge.
The accused
at the trial are referred to as
the appellants in this opinion.
This being a
criminal trial,
the onus
was heavily on the prosecution
to prove beyond reasonable
doubts that on the day stated in
the charge sheet, the
appellants used force or threat
of harm to any person or the
complainants for the purpose of
stealing their properties, that
there was the intention to
prevent or overcome the
resistance of the complainant
and lastly, and more
importantly, that it was the
accused who committed the
offence of robbery on the
prosecution witnesses, the
complainants at the trial.
From the
grounds of appeal quoted above
the pith of the grounds of
appeal (in grounds one, two and
three), deal with the issue of
the identity of the persons who
were alleged to have committed
the acts complained of. The crux
of the grounds of appeal were
the procedure for carrying out
the identification parade by the
police and the defence of the
plea of alibi put up by the
second appellant; by this
appeal, these ought to be
considered to see how far the
prosecution succeeded in
discharging the onus on them
namely, to prove beyond
reasonable doubts that it was
the appellants who committed the
offence in question.
Evidence on
identity of appellants:
In the
present appeal, there could be
no doubt the prosecution proved
beyond reasonable doubts that
the offence charged, to wit
robbery, was committed on the
date and place in question; what
was in dispute was the identity
of who the perpetrators were.
The prosecution alleged and the
appellants categorically denied
that they committed the offence.
The multi billion cedi question
is, therefore, was there
sufficient evidence to convict
the appellants on the charges
they faced at their trial or the
first appeal in the courts
below? That would tend to put
the identity of the perpetrators
in dispute. The law was that:
In every
criminal trial it is not only
necessary for the prosecution to
prove the commission of the
crime, but also to lead evidence
to identify the accused as the
person(s) who committed it. That
was of a very crucial importance
for a proven case of mistaken
identity is a good ground for
reversing a conviction for a
crime on appeal. Thus where the
ground of appeal bothers on
mistaken identity, a trial or
appellate court ought to
carefully examine the evidence
on it. A judge is to guide
himself by considering factors
such as the period of time over
which the witness saw or
observed the accused (appellants
in this appeal), the conditions
in which the observation was
made, whether or not the area or
vicinity was lit to make the
observation possible, the
distance between the witnesses
and the appellants, or whether
or not the description by the
prosecution witnesses agreed
with that of the appellant(s).
On this see the guidelines by
Lord Widgery CJ in
R v
Turnbull [1977] QB 224.
The
identification may take various
forms. In
’Phipson on Evidence’ (10th
ed.) p 170 paragraph 1381,
it is stated:
‘When a
party’s identity with an
ascertained person is in issue,
it may be proved or disproved
not only by direct testimony, or
opinion evidence, but
presumptively by similarity or
dissimilarity of personal
characteristics: e.g. age,
height, size, hair, complexion,
voice, hand-writing, manner,
dress, distinctive marks,
faculties, or peculiarities
including blood group, as well
as of residence, occupation,
family relationship, education,
travel, religion, knowledge of
particular people, places, or
facts, and other details of
personal history.’ see
Adu
Boahene v The Republic [1972] 1
GLR 70 at 74
Thus, it is
fair and reasonable to say that
the modes of identifying the
perpetrators of a crime vary and
holding an identification parade
may be one of the acceptable
modes. Another may be by proof
of personal characteristics or
peculiarities like the height of
the person given by the oral
evidence by prosecution
witnesses on oath in court.
In this
appeal, the evidence on the
identity of the appellants was
given by the PW1, George Peter
Ward. He gave a graphic account
of how five men armed with guns
used five inch blocks and a pick
axe to break into his house
amidst gunshots all over the
place.
The PW1 was
positive one of the five men
wore a mask. Inferentially the
others were not so masked so he
saw the faces of those unmasked
men.
A week after
the horrendous episode, the PW1
and others were called to the
police station headquarters for
an identification parade. There
he was able to identify the
first appellant as one of the
people who went to rob them – he
walked to the first appellant
and touched him. The PW1 said he
was able to identify him because
of his low hair cut and fair
complexion.
Under
cross-examination, the PW1 said
even though the nightmarish
attack in the house took place
at about 2:00 am, there was
light from a four feet
florescent bulb in front of the
house. The attackers came to the
house and were there for an hour
and he the PW1 did not have any
visual problem, so he could see
them clearly.
The evidence
of the PW2, Mrs. Christiana Lee
Ward, on the identity of the
robbers did not differ from that
of the PW1. She also identified
the first appellant at the
parade. In the house, she saw
him through the holes in the
blocks of the verandah. The
identification marks or features
about him were that his hair had
been cut low and he was tall; he
was the one who instructed the
other robbers to stop hitting
the door with the cement blocks
because there was an iron bar
behind it. When the robbers
gained ingress into the house,
she saw them as she entered her
room which had its lights on.
They slapped her and asked her
for money and ordered her to
bring her bag. She obliged them
the request or order. The bag
contained 7 million cedis, made
up of 500 dollars, and 1.5
million cedis. This evidence
showed that the PW2 had a close
encounter with the robbers, and
an opportunity to see them - she
could see them in the light
before they entered the house.
The first appellant was one of
them.
The PW3,
Edmund Aboagye told yet another
gruesome encounter with the
robbers-how they entered his
house to rob him, fully armed to
the teeth with doubled barreled
gun, a cutlass and a pistol.
They succeeded in robbing him of
cash the sum of ¢300,000.00 and
¢200,000.00 (thus making a total
of ¢500,000.00), some jewellery
and mobile phones.
At the
parade, he was able to identify
the first appellant as one who
took part in the robbery in the
house that night. To quote his
exact description he said he saw
the first appellant ‘fiilifiili’
– a local parlance meaning ‘very
clearly’.
These three
prosecution witnesses who were
participants at the parade
identified the first appellant
as one of the robbers. [The PW3
said he was able to identify the
first appellant because when he
was in his daughter’s room, he
could see clearly what was going
on and the 1st appellant was the
one who was taking the
jewellery. He saw him clearly
for his hair had been cut
low.]
It was
noteworthy that the 2nd
appellant was not identified as
one of the robbers by the
Prosecution Witnesses at the
first parade. He was identified
at a second parade by the PW2.
This was confirmed by the 2nd
appellant in his testimony
before the trial court where he
said the witness identified tall
and fair colored men.
Counsel for
the appellants wondered why five
men were identified at the
parade but only the two
appellants were charged with the
offence, thus casting doubts
about the reliability of the
parade.
The answer
was provided by the prosecution
through the evidence by the PW4,
Detective Inspector Ben Gakpe,
who investigated the case. He
said the second appellant was
identified by the PW2 at a
second parade. There were five
persons who were identified but
only two were charged with the
offences because the others were
not picked out as suspects – in
other words five were identified
but only two were picked out as
suspects. The reason was that
someone told him a story about
them; that was to say, there was
evidence against those two
persons. As there was nothing
against the rest they were not
charged with any offence. That
was the reasonable thing to do.
Those other persons had only
been brought to form part of the
group of persons for the parade,
that was to only form the ‘row’
but not because they were
suspected to have taken part in
the robbery.
A close
study of the entire record of
proceedings reveals that there
was ample evidence to support
the conclusion of the Court of
Appeal that the two appellants
were properly identified as
having taken part actively in
the robbery in the houses at
West Anaji, Takoradi, on 27th
July 2005. This was via the oral
evidence by the prosecution
witnesses on oath supported by
identification evidence at the
parade at the police station.
It ought to
be stated that issues about the
identity of the appellants as
being members of the gang that
committed the offence in
question, were of fact the
resolution of which lay squarely
within the province of the trial
judge. When he discharged that
burden with a finding of fact,
an appellate court would be slow
to interfere with it unless it
could be shown that there was no
evidence to support that finding
of fact. That was not the case
here where the evidence was
rather overwhelming in support
of the offence charged against
the appellants.
The critical
question is whether such
identification evidence as was
led by the prosecution was
sufficient to support the
conviction of the appellants? It
ought to be noted that this was
not like an in-dock
identification in
Karim v
The Republic [2003-2004] SCGLR
812.
In this
appeal there was evidence from
prosecution witnesses who had
the opportunity to see the
robbers ‘fiilifiili’ because of
light from a four feet
fluorescent bulb. They also were
close to each other in the
houses and rooms where the
robbers ordered them to
surrender items like jewels and
cash to them. There was also
evidence that the appellants
were identified at a parade at
the police station before they
were charged with the offence.
At least this is enough to
distinguish this appeal from
Karim (supra) on the facts.
The plea of
alibi:
The second
appellant pleaded alibi in his
defence. Simply put, it means
the fact or state of the
appellant having been elsewhere
when the offence was alleged to
have been committed.
In criminal
law and procedure, “if an
accused puts forward an alibi as
an answer to a criminal charge,
he is simply saying that whoever
might have committed the
offence, if it was committed at
all, it was not he; and to
support this he leads evidence
that he was elsewhere at the
material time.” see
Bediako v
The State [1963] 1 GLR 48, SC,
at 50.
The onus
of making good the plea of alibi
was on the person asserting it,
in this case the second
appellant. This he may discharge
on the balance of probabilities.
In his effort
to prove his plea of alibi, the
second appellant said in his
evidence in chief that on the 27
th, July 2005,
he was not in Takoradi,
having traveled to Accra with a
brother, Albert Koomson, on a
business transaction, on 24th
July. In Accra, he slept at a
hotel called ‘Chavez’ in
Achimota, until the 26th
July 2005. Due to lack of
sufficient money, that day, they
moved from the hotel to the
house of a girl friend where
they stayed till 28th
July 2005. It was when they got
back to Takoradi that he heard
that Albert Koomson had been
arrested for robbery. When he
went to visit him at the police
station, he was arrested for the
offence and later identified by
the PW2 as having been one of
the robbers.
Earlier he
said in his cautioned statement
to the police tendered in
evidence as Exhibit ‘G’, that,
he had traveled to Accra on
business to collect his goods on
the 27th August 2005
so the police could contact one
Osei Nyarko of Dansoman. In
court he did not mention the
name of this Osei Nyarko at all.
He rather
gave evidence that he was with a
girl-friend called Eartha
Lartey, whose name had not been
mentioned in exhibit G at all
and who made a poor show of
herself under cross-examination,
as she refused to answer
questions but only retorted ‘I
don’t know’ to them for her
answers. She did not lend any
support to the cause of her
principal the second appellant.
It thus created the presumption
that the introduction of Eartha
was an afterthought.
The
credibility of a witness and
weight to be given to his
evidence was the duty of a trial
court.
The trial
court disbelieved the story of
alibi and rejected it. The Court
of Appeal affirmed the trial
court in considering and
rejecting the defence of alibi
put up by the 2nd
appellant. There was evidence to
support the conclusion of the
Court of Appeal and I have no
reason to disturb their
decision.
An appeal to
this court is by way of a
rehearing of the facts in
evidence.
I also
affirm the two lower courts in
their treatment of the plea of
alibi by the second appellant.
Section 131
of Act 30, of the Criminal and
other offences (Procedure) Act,
1960, (Act 30), governs the
practice and procedure in alibi,
and provided that:
“131 Alibi
(1) Where an
accused intends to put forward
as a defence a plea of alibi,
the accused shall give notice 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
..”.
There is no
prescribed form for the notice
to the prosecutor for an alibi
and an accused person may give
the required notice and
particulars in his investigative
cautioned statement to the
police. That was Exhibit ‘G’ at
the trial dated (sic) 9-9-200.
That was long before the PW1
gave evidence on 18th
November 2005.
The issue is
did the failure by the second
appellant to file the required
notice of alibi have any effect
in law? Bediako v The Republic
[1976] GLR 39, deserves
consideration. In that case,
there was no notice of alibi
filed by the third appellant
therein and Sarkodee J did not
think the mere mention by the
accused in his statement that he
was not at the scene amounted to
notice; the learned judge
considered that the sum total of
the defence was a complete
denial of the charge which was
considered and rejected by the
trial court. He had earlier
held that where the accused
failed to give such notice as
was required of him under
section 131 (1) of Act 30, it
must appear to the trial court
that there was the defence of
alibi properly before court: see
page 42. The learned judge went
on to hold that nothing stopped
the accused from calling as
witnesses the people he said he
was with to confirm his defence
if it was true.
In this
appeal, the defence of the
second appellant was
investigated by the PW4, the
police investigator. The trial
judge considered the defence by
the second appellant but
rejected the alibi because of
the contradictions in his
evidence and his alibi
witnesses.
Counsel for
the appellants submitted that
the reasons for disbelieving the
story of the 2nd
appellant were not weighty for
they were trivial. I was tempted
to agree with the submission
for, for conflicts in testimony
to be exculpatory, they must be
weighty and substantial on
material issues. However, where
a particular defence is put up,
its inherent veracity is
determined by the presence or
absence of conflicts and even
the minutest conflict may
provide a chink in the story
which may prove sufficient
ground for disbelieving the
story. Thus, the trial judge
examined the evidence of Eartha
Lartey the alibi witness, and
noted that she contradicted the
evidence of her principal the 2nd
appellant on the period of their
relationship, the number of
times he slept in her house, the
food they ate on the 26th
of July 2005 as well as her
demeanor in the court room
during her evidence under
cross-examination. Besides that
the second appellant did not
mention or call Osei Nyarko’s
name in his statement in exhibit
‘G’ The trial judge had the duty
to decide which witness he
should believe or not on an
issue. He determined whether or
not the second appellant proved
his alibi on the balance of
probabilies.
In this
appeal, the trial judge scored
very low marks for the 2nd
appellant and his witness on the
alibi and rejected that defence.
I have no reason to interfere
with what he did.
Appeals to
the superior courts are governed
by Sup-part V of the Courts Act,
1993, Act 459, and
Section 31
(1) thereof provided that in
criminal matters an appellate
court shall allow the appeal if
it considers that the verdict
for conviction or acquittal
ought to be set aside on the
ground that it is unreasonable
or 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 and in any other case
shall dismiss the appeal.
Section 31
(2) provided that:
“The court
shall dismiss the appeal if it
considers that no substantial
miscarriage of justice has
actually occurred …”
I have given
consideration to the submission
by counsel for the appellants
that it was not likely that tall
persons like the appellants who
would stand out clearly would
ever undertake an armed robbery
in their neighborhoods, and I
must make myself clear such a
submission defies all logic as
it is preposterous and
extravagant, to put it mildly. I
reject it. Where was the proof
that it was only short people
who would commit offences of
this nature in the neighbor hood
or elsewhere for they would
escape detection because of
their diminutive height? None
was provided by counsel.
Equally
unimpressive was the submission
that people who were known in a
particular vicinity are unlikely
to commit offences there for
they could be easily identified
and arrested. Counsel did not
provide any scientific clues or
facts by way of evidence to
support this submission. He did
not provide any basis for
judicial notice to be taken of
that by the courts too. He did
not lead a scintilla of evidence
that the appellants were known
in the vicinity. It was not
surprising the Court of Appeal
rejected it. I agree with the
Court of Appeal.
I have
considered the entire record of
appeal and concluded that there
was more than ample evidence to
support the finding of guilt of
the appellants on the charges;
that the offences were proved
beyond reasonable doubts and the
appellants were properly
convicted on all the counts.
It must be
observed that in this appeal,
the trial and the first lower
appellate court concurred in
their findings of facts and the
law on this is that:
“in an appeal
against findings of facts to a
second appellate court like this
court, where the lower appellate
court had concurred in the
findings of the trial court, ….
This court will not interfere
with the concurrent findings of
the lower courts unless, it is
established with absolute
clearness that some blunder or
error resulting in a miscarriage
of justice, is apparent in the
way in which the lower courts
dealt with the facts. It must be
established, eg, that the lower
courts had clearly erred in the
face of a crucial documentary
evidence, or that a principle of
evidence had not been properly
applied: see Thakur Harihar
Buksh v Thakur Umon Parshad
(1886) LR 141A7; or as pointed
out in Robins v National Trust
Co. [1927] AC 515, that the
finding is so based on erroneous
proposition be corrected, the
finding disappears. In short, it
must be demonstrated that the
judgments of the courts below
are clearly wrong: see Allen v
Quebec Warehouse Co. (1886) 12
App Cas 101.” see: Achoro v
Akanfela [1996-97] SCGLR 209;
Obrasiwa II v Out. [SCGLR] 618;
Koglex (No 2) v Field [] SCGLR;
Adu v Ahamah [2007-2008] SCGLR
143; GPHA & Captain Zeim v Nova
Complex Ltd. [2007-2008]; SSB
LTD. v CBAM Services Inc.
[2007-2008] SCGLR [2007-2008]
894.
This line of
respectable authorities shows
that the law on concurrent
findings of facts are well
settled. The law applies, where
such as in this case, the
findings are supported by
evidence on record.
I make bold
to say I have examined the
judgment under appeal, including
of course, the evidence
marshaled by both sides, but
found no such error or blunder.
Try as the appellants did, they
did not succeed in showing
any.
Consideration
of appeal against sentence
The sentence
a court may inflict on an
accused person either at a trial
or on appeal is entirely within
its discretion.
In Mohammed
Kamil v The Republic, unreported
judgment of this court delivered
on …, this court said:
“The factors
a court would consider in
determining the length of
sentence are stated in Kwashie v
The Republic [1971] 1 GLR 488,
CA, to be:
‘(1) the
intrinsic seriousness of the
offence; (2) the degree of
revulsion felt by law-abiding
citizens of the society for the
particular crime; (3) the
premeditation with which the
criminal plan was executed; (4)
the prevalence of the crime
within the particular locality
where the offence took place, or
in the country generally;(5) the
sudden increase in the incidence
of the particular crime; and (6)
mitigating or aggravating
circumstances such as extreme
youth good character and the
violent manner in which the
offence was committed. Thus a
judge in passing sentence may
consider the offence and the
offender as well as the interest
of society.”
Besides this,
this court in Mohammed Kamil
(supra), reminded itself that:
“Where an
appellant complains about the
harshness of a sentence, he
ought to appreciate that every
sentence is supposed to serve a
five-fold purpose, namely, to be
punitive, calculated to deter
others, to reform the offender,
to appease the society and to be
a safeguard to this country, see
also what this court said in a
similar situation in Hodgson v
The Republic ; Gligah & Atiso v
The Republic [2010] SCGLR
870.
I am not
satisfied that the Court of
Appeal failed to consider all
these factors or that, they
considered irrelevant factors or
that for any sufficient reason
they did not exercise their
discretion judicially, or that
their sentence was inordinately
harsh.
In the
result, the appeal against
sentence did not deserve any
favorable response by this
court.
The only
mitigating factor might be that
even though they were armed, no
life was lost or any injuries
were inflicted on the hapless
victims. That alone was not
enough to persuade us to
interfere with the quantum of
sentence. In my view considering
all the circumstances of this
case, the Court of Appeal was
lenient, right and fair, in
substituting the 30 years
imprisonment for each appellant
for the life imprisonment dished
out by the trial court and this
court will not interfere with
the exercise of its discretion.
In the
result, I proceed to affirm the
conviction and sentence and
dismiss the appeal entirely.
(SGD)
J. ANSAH
JUSTICE
OF THE SUPREME COURT
(SGD) S. A.B. AKUFFO
(MS)
JUSTICE OF THE SUPREME COURT
(SGD)
DR. DATE-BAH
JUSTICE OF THE SUPREME COURT
(SGD)
P. BAFFOE BONNIE
JUSTICE OF THE SUPREME COURT
(SGD)
V. AKOTO BAMFO (MRS)
JUSTICE OF THE SUPREME COURT
COUNSEL
WILLIE
AMARFIO (a.k.a NII AMAR) FOR
THE APPELLANTS.
K.
ASIAMA-SAMPONG ( PRINCIPAL STATE
ATTORNEY) FOR THE RESPONDENT.
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