Seidu v S (CR/0517/2025) [2025] GHAHC 145 (22 July 2025)

IN THE HIGH COURT OF JUSTICE HELD IN ACCRA ON TUESDAY THE 22ND DAY OF JULY, 2025 BEFORE HER LADYSHIP JUSTICE MARY M.E YANZUH, JUSTICE OF THE SUPERIOR COURT OF JUDICATURE SITTING AT CRIMINAL COURT THREE (3) SUIT NO: CR/0517/2025 1. NIFTAWU SEIDU - A1/CONVICT/APPELLANT 2. TUPAC (AT LARGE) 3. MUASID (AT LARGE) VRS THE REPUBLIC RESPONDENT JUDGMENT The Appellant herein was arraigned before the Wa Circuit Court on the 8th of August 2017 wherein he was charged with the offence of conspiracy to commit robbery contrary to Section 23(1) and 149 of the Criminal Offences Act 1960 (Act 29), abetment of robbery contrary to Section 20(1) and 149 of Act29/60 and robbery contrary to Section 149 of Act 29/60. The appellant pleaded guilty simpliciter to count one and two that is the offence of conspiracy to rob and abetment of robbery and guilty with explanation to the count of robbery. The trial judge heard the explanation of the appellant on the charge of robbery 1 and found that his explanation to the charge of robbery is inconsistent with the facts as presented by prosecution. He however convicted the appellant on his guilty plea to count one and two and proceeded to sentence him to 15 years IHL. It is against this sentence that the appellant filed the instant appeal on the 13th of June 2025 praying the appellate court for mitigation of sentence imposed by the trial circuit court. GROUNDS OF APPEAL The grounds of appeal filed are as follows: 1. . Thạt the Appellant has sincerely regretted his action and it is out of deep remorse that he is praying for this honourable court to reduce his sentence to the barest minimum. 2. That the Appellant sincerely regrets his action and it is out of deep remorse that he is praying for mitigation of sentence since same is harsh and excessive. 3. That the Appellant is a first. time offender who has learnt his lesson and turned a new leaf having gone through reformation and rehabilitation programmes over the years he has served in prison, hence his plea for mitigation of sentence. 4. That as part of the programmes undergone for reintegration into the society, the Appellant enrolled in the Reformer’s ICT (information and Communication Technology) School and passed the NVTI (National Vocational Training Institute) Examination for Level I, II and III respectively with good grades. Thereafter, the appellant enrolled in the University of Cape Coast’s Distance Education in 2019 and successfully completed with (second class Honours, Lower Division) Bachelor of Commerce in Management. 2 5. That copies of the NVTI’s certificate and UCC Bachelor of Commerce certificate are hereto annexed and marked as Exhibit A1, A2 and A3 and A4 respectively. 6. That the Appellant prays the Honourable court to kindly consider the psychological and negative consequences of long incarceration and commute the sentence to the barest minimum since the retrieved cash and mobile phone was restituted. FACTS OF THE CASE According to the prosecution, complainant Sherifa Alhassan is a caretaker of Yasaanah ventures dealers in mobile money transfer and recharge cards and living at Dobile, a section of Wa whilst first accused person Niftawu Seidu is a mobile money vendor working for the complainant and resides at Chorkor, also a section of Wa. The second and third accused persons Tupak and Muasid are both residents of Wa but now at large. On the 1st day of August, 2017 at about 8:00pm, the first accused person finished rendering his daily sale account to his supervisor by name Hussein. After that, the supervisor handed over the consignment bag containing physical cash the sum of GH¢3,730.00, MTN electronic cash the sum of GH¢482.00, Vodafone electronic cash the sum of GH¢741.00, one Airtel mobile phone valued GH¢100.00, one Techno mobile phone valued GH¢100.00, MTN, Vodafone, Airtel and Tigo recharge cards all worth GH¢122.00 to the first accused to deliver same to the complainant in her house. After the first accused has sent the said items to the complainant, he conspired with the second and the third accused persons to rob the complainant. Few minutes later, the first accused led the second and third accused persons to the complainant's house. The 3 accused persons who were armed with a locally manufactured pistol and wearing face masks, attacked the complainant in her room. One of them gave the complainant a severe slap in her face which caused the complainant to fall down. The first accused then went straight to pick the bag containing the consignment from the complainant's room. The accused and his accomplices also took the complainant's strong decoder and W4 Techno mobile phone and bolted amidst warning shots. On the same day at about 9:38pm the first accused took the stolen MTN electronic cash mobile phone to a mobile money vendor at Tendamba and withdrew cash the sum of Ghc430.00. The complainant lodged a complaint to Police and in the course of investigations the first accused was arrested. The first accused admitted the offence and led Police to an uncompleted building at Chorkor, next to his house and showed Police where he concealed an amount of Ghc2,974.00 out of the money they robbed from the complainant. The money was recovered by Police and kept as exhibit, all efforts made to arrest the second and third accused persons have proven unfruitful as they have fled the town and gone into hiding. RESOLUTION OF THE APPEAL From the three grounds of appeal filed, the appellant is clearly seeking this court to mitigate the sentence imposed on him. Even though he prays the court to consider his reformed character, the law is clear that a ground of appeal which calls on the court to consider the reformed character of the appellant, and also to consider the lessons the appellant has learnt during his period of incarceration is nothing more than a plea to the court and cannot be considered as a ground of appeal and the same goes for the educational certificates earned while in custody. 4 The duty of the court in this judgment and any appeal against sentence is to consider the sentence meted out to the appellant to make a decision whether according to the law and statute, same ought to be disturbed. Section 23(1) of the Criminal Offences Act 1960 Act 29. This provides that: “Where two or more persons agree to act together with a common purpose for or in committing or abetting a criminal offence, whether with or without a previous concert or deliberation, each of them commits a conspiracy to commit or abet the criminal offence.” Section 20(1) of Act 29/60 provides the law on abetment of crime. It states that: “(1) A person who, directly or indirectly, instigates, commands, counsels, procures, solicits, or in any other manner purposely aids, facilities, encourages, or promotes, whether by a personal act or presence or otherwise, and a person who does an act for the purposes of aiding, facilitating, encouraging, or promoting the commission of a criminal offence by any other person, whether known or unknown, certain, or uncertain, commits the criminal offence of abetting that criminal offence, and of abetting the other person in respect of that criminal offence.” Section 24(1) of Act 29 provides that: “(1) Where two or more persons are convicted of conspiracy for the commission or abetment of a criminal offence, each of them shall, where the criminal offence is committed, be punished for that criminal offence, or shall, where the criminal offence is not committed, be punished as if each had abetted that criminal offence.” Section 149 of Act 29 provides that: 5 “Whoever commits robbery is guilty of an offence and shall be liable upon conviction on trial summarily or indictment to imprisonment for a term of not less than ten (10) years and where the offence is committed by the use of an offensive weapon or offensive missile, the offender shall upon conviction be liable to imprisonment for a term of not less than fifteen years.” What constitutes an offensive weapon or missile is defined in section 206 (3) of Act 29. Section 206 (3) provides thus: “For the purposes of this section (a) “Offensive missile” includes a stone, or a brick likely to cause harm if thrown (b) “Offensive weapon” means any article made or adapted for use for causing injury to the person or intended by the person having it for that use by that person”. A person who commits robbery with the use of an offensive weapon or offensive missile shall be sentenced to a minimum of fifteen years imprisonment. A person who commits robbery without the use of offensive weapon or offensive missile shall upon conviction be liable to a minimum sentence of ten years. However since robbery is a first degree felony per Section 296 of Act 30 which is on general rules for punishment the maximum sentence for offences where the provision creating the offence does not specify it. Section 296(1) of Act 30 provides thus: 6 “Where a criminal offence is declared by an enactment to be a first degree felony and the punishment for that offence is not specified, a person convicted of that offence is liable to imprisonment for life or a lesser term.” From the above therefore, the minimum punishment the appellant could legally face for the offence of robbery which per the facts of the case was with gun which the law has described as an offensive weapon is fifteen (15) years and same for the offence of conspiracy to commit robbery and abetment of robbery. A trial judge therefore in sentencing an accused person who has been convicted of the offences such as the appellant was charged with has the discretion in imposing a sentence of fifteen (15) years to life imprisonment. The decision of the court as to the length of sentence to impose from within the statutory limits is an exercise of the court’s discretion. Andoh J in Komegbe and Others v The Republic (1975) 2 GLR 170 referring to the statement of Lord Halsbury L.C. in Sharp v Wakefield (1891) A.C. 173 at 179 defined judicial discretion as: " ... Discretion means when it is said that something is to be done within the discretion of the authorities that that something is to be done according to the rules of reason and justice, not according to private opinion ... according to law, and not humour. It is to be, not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself" 7 Thus where a court has to exercise its discretion, same must not be arbitrary but fair. The constitution has provided a guide as to the exercise of that discretion. Article 296 of the 1992 Constitution enjoins that the discretionary power shall be deemed to imply a duty to be fair and candid and shall not be arbitrary, capricious or biased either by resentment, prejudice or personal dislike and shall be in accordance with due process of law. In complying with due process of the law our courts always act upon the principle that the sentence imposed must be commensurate with the gravity of the offence. The appropriate sentence to be imposed should depend on the nature of the offence, the offender that is the convict and the entire circumstances of the case. The court therefore is to consider both mitigating and aggravating factors. In Apaloo vrs The Republic [1975] 1 GLR 156 at 190, the court stated that: “The court will interfere with a sentence only when it is of the opinion either that the sentence is manifestly excessive, having regard to all the circumstances of the case or that the sentence is wrong in principle”. The dictum of Taylor J (as he then was) in Haruna vrs The Republic [1980] GLR 189 at page 191 was that: “The question of sentence was a matter of discretion with all courts of justice. However, the discretion was exercisable on well known principles. In awarding sentence, all the circumstances must be considered. If there were circumstances tending to mitigate the application of the deterrent principle, then reasons must be given why those circumstances must be ignored if a deterrent sentence was imposed. If it was not done, 8 then the discretion had not been properly exercised and an appellate court could interfere with the said exercise of discretion. If, however, all the circumstances relevant to the question of appropriate sentence have been adequately considered, the exercise of a discretion by a lower court ought not to be impugned by an appellate court”. From the record of appeal, the trial judge sentenced the appellant herein to the minimum sentence upon considering all mitigating and aggravating factors. The Courts are servants of statutes and the legislature and are admonished not to grant immunity from breaches of statutes especially of the Constitution. In Republic v. High Court (Fast Track Division) Accra; Ex parte National Lottery Authority (Ghana Lotto Operators Association & Others Interested Parties) 2009 SCGLR 390. At 397 the Supreme Court said: “It is communis opinio among lawyers that the courts are servants of the legislature. Consequently any act of a court that is contrary to a statute is, unless expressly or impliedly provided, a nullity.” This court cannot therefore reduce the sentence imposed beyond the minimum prescribed by statute. To do so will be a nullity. The result of the foregoing is that the appeal fails and same is dismissed. PARTIES: APPELLANT PRESENT COUNSEL: 9 MARIAN BOAKYE-YIADOM FOR THE REPUBLIC/RESPONDENT PRESENT APPELLANT IN PERSON MARY M.E YANZUH J. JUSTICE OF THE HIGH COURT 10