S v Acheampong Junior and Another (BON/SYN/HC/F15/019/2025) [2025] GHAHC 183 (9 June 2025)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURTOF JUSTICE, COMMERCIAL DIVISION “B” (GENERAL JURISDICTION) HELD AT SUNYANI ON MONDAY THE 9TH DAY OF JUNE 2025 BEFORE HER LADYSHIP JUSTICE JOYCE BOAHEN, HIGH COURTJUDGE SUITNO. BON/SYN/HC/F15/019/2025 THEREPUBLIC V 1.ATTABIENNNI ACHEAMPONG JUNIOR 2.FRANCIS KWADWOMANU @WASTY JUDGMENT ConvictsAppellantspresent Republic Respondentabsent MensahBoakyeDavid appearsfortheAppellants BACKGROUNDTOTHEAPPEAL On 4th November, 2024 His Lordship Charles Kwasi Acheampong sitting at the Circuit Court, Hwidiem in the Ahafo Region as Additional Circuit Court Judge, convicted and 1 sentenced the 1st Appellant (A1) and the 2nd Appellant (A2) the Appellants herein at page20ofthe record ofappealas follows; By Court; This Court finds that prosecution failed to establish the offence of robbery (count two) against 2nd accused person, 2nd accused person is accordingly acquitted and discharged on count two. With regardsto countone, the chargeof conspiracy,this Courtfinds that same was dulyestablished by prosecution beyond reasonable doubt against both accused persons. Accused persons are accordingly found guilty on count one and hereby convicted. 1st accused person alone is found guiltyon counttwo and dulyconvicted. Atpage 21oftherecord ofappealthe trial Judge statedas follows; This Court has considered the fact that there is no evidence on record to suggest that the accused persons are known. The Court also has considered the plea (sic) mitigation raised by accused by accused persons. Consequently, this Court is minded to impose the minimum sentence at law. Given the fact that offensive weapons namely: the metal sign post, a cement blocks (sic) were usedin the commission of the offences, the Courthereby sentences accused personsas follows; Count One: A1 and A2 are sentenced to serve a term of imprisonment of 15 years imprisonment (sic)with hard labour. 2 CountTwo: A1 alone is sentenced to serve aterm of imprisonment of 15 years imprisonment(sic) inhard labour. Sentencesto runconcurrently. Being dissatisfied with their conviction and sentence, the Convicts Appellants hereinafter called Appellants filed petition of appeal against their conviction and sentence. The groundsofappealare that; The facts / evidencedo notsupportthe chargeof robbery and That the sentence was too harsh. The Appellants prayed the Court to set their conviction aside on the ground that prosecution failed to prove the essential ingredients of conspiracy to commit robbery and robbery since same are not supported by the evidence on record which makes their sentence harsh. PROOF OF CONSPIRACY TOCOMMIT ROBBERYAND ROBBERY Counselfor Appellants Counsel for the Appellants submitted that on the 8th day of May 2024 the Appellants were arraigned before the Circuit Court, Hwidiem on two counts; (1) Conspiracy to commit robbery and (2) Robbery. They pleaded not guilty to the charges and the case 3 proceeded to full trial. With reference to the case of the Republic v. Ekow Gyasi, Isaka Osuman and Eric Tetteh @ Moses Agbomeh (2023) Judy Law Report 111613, Counsel submitted that to prove the offence of conspiracy, prosecution must prove that the Appellants agreed to act together for a common purpose of committing crime. That per section 11 (2) of the Evidence Act, prosecution bears the burden to produce sufficient evidence to prove the guilt of the accused persons beyond reasonable doubt. In proving the guilt of the accused persons beyond reasonable doubt, this burden of prosecution remains throughout the trial and prosecution must prove the essential ingredients of conspiracy and robberybeyond reasonable doubt. Counsel made reference to the facts presented by prosecution, the evidence of prosecution’s witnesses PW1 and PW2 and argued both grounds of appeal together. According to Counsel the conviction and sentence of the Appellants do not support the evidence on record and that prosecution woefully failed to establish that theAppellants agreed to act together for a common purpose to commit robbery. With reference to the trial Court’s finding that A1 and A2 acted together, Counsel noted that there is no such evidence on record. ThatA2 stated thatA1 is not his friend and that he had gone to buy something and on his return he saw A1 and PW1 engaged in a scuffle and that he did not conspire with A1 to rob PW1. Counsel concluded that the offence of conspiracy is notsupported by theevidence onrecord. 4 He made reference to the evidence of the 1st Appellant on record and stated that the 1st Appellant did not haveintention to commit crime because he did not run away with the Complainant’s phone and none of the Complainant’s stolen items were found on him. Counsel contends that the trial Judge relied on the 1st Appellant’s investigation cautioned statement which the 1st Appellant objected to its admission but the Court overruled his objection. According to Counsel the 1st Appellant’s case is that PW1 drew a knife from his bag and that is why he hit PW1 with a block and that while this allegation of the 1st Appellant remains unchallenged under cross – examination it is deemed to have been admitted by PW1. Counsel therefore prayed that the conviction of the Appellants be set aside on the ground that prosecution failed to prove the essential ingredients of the offences of conspiracy to commit robbery and robbery because they arenotsupported by the charge. Counselfor theRepublic Counsel for the Republic noted that in criminal trials the burden of prosecution is to prove the guilt of an accused person beyond reasonable doubt. In so doing prosecution must prove the essential ingredients of the offence. The accused person on the other hand is only required to raise a reasonable doubt. According to Counsel, prosecution duly executed its duty as required by law and proved the guilt of the Appellants beyond reasonable doubt. With reference to the case of the Republic v. Baffoe Bonnie & 5 Others (Suit No. CR/90/2017) (Unreported) dated 12th May 2022, Counsel stated the elementsofconspiracy asfollows; 1. That theremust be atleast twopersonsinvolved 2. That therewasagreement toact together 3. That thesole purpose ofthe agreement wastoengage in acriminal enterprise. It is the case of the Republic that the conviction of the Appellants was supported by the evidence on record because the action of the Appellants on that night shows a shared criminal intent and joint execution. The uncontroverted evidence of the Complainant corroborated by the medical report of the Complainant and the circumstances under which the Appellants were arrested shows that the Appellants agreed and acted togethertorobthe Complainant. Counsel argued that the 1st Appellant’s demand for money from the Complainant, followed by the 2nd Appellant by taking the Complainant’s phone forcefully which the Complainant resisted shows a premeditated effort of theAppellants to commit robbery. It wasnot incidental but strategic when the 1stAppellant followed upthe 2ndAppellant’s theft with brutal physical violence by striking the Complainant with a sign post and 6 hitting the Complainant’s arm with a block. The loss of consciousness of the Complainant after he was assaulted and the Appellants fleeing the scene with the Complainant’s hand bag, money and keys are all proof of execution of a coordinated plan. The Appellants did not only flee the scene but they went into hiding together and they were arrested in their hideouts. The Appellants conduct as a whole supports a chargeofconspiracy. Counsel argued that for the offence of robbery, prosecution must show that the Appellants stole something, in stealing the thing they used force, caused harm or used threat of criminal assault intended to overcome resistance to the theft. According to Counsel prosecution led evidence to establish all the essential elements of robbery supported by the Complainant’s strong evidence corroborated by the medical report which confirmed injuries the Complainant sustained and the fact that the Appellants werearrested attheir hideout shortlyafterthe crime. The violent attackonComplainant, the Complainant’s phone which was taken from him forcefully, the physical assault of the Complainant on the head and arm causing him to be unconscious and the Appellants taking away Complainant’s hand bag, money and key raise no doubt that prosecutionestablished thecrime ofrobbery. 7 The Republic argued that the trial Court rightly found the 1st Appellant guilty of robbery because the evidence showed that he was the one who physically assaulted the Complainant and the said violence facilitated the successful commission of the robbery because it rendered the Complainant unconscious. Counsel contends that the Appellant’s submission that the facts and evidence do not support the charge of robbery is misconceived and without merit because the trial Judge properly directed himself regarding the evidence on record and rightly convicted the Appellants. According to Counsel the sentence was not harsh because the 1st Appellant used two offensive weapons being a metallic signpost and concrete block to facilitate the robbery and for that matter falls within the minimum threshold of the law when offensive weapons are used. The appeal according to Counsel is without merit because the evidence on record support the essential ingredients of conspiracy to commit robbery beyond reasonable doubt. The sentence imposed ontheAppellants is neither arbitrarynor capricious but in accordance with law. The sentence of fifteen (15) years is just and proportionate and for thatmatter,Counsel prayedthe Courttodismiss theappealin itsentirety. EVALUATIONOF THE FACTS, EVIDENCE ANDAPPLICATION OF THELAW In the case of Continental Plastics vs. IMC Industries [2009] Supreme Court of Ghana LawReport(SCGLR) 298at307-308,the Courtheld that; 8 An appeal is by way of rehearing, the second appellate court is bound to choose the finding which is consistent with the evidence on the record. In effect, the court may affirm either of the two findingsor make an altogether differentfinding based on the record… This being a first appellate Court, the Court is obliged to make a finding consistent with theevidence onrecord. In the case of Republic vs. Baffoe Bonnie and Others (Suit No. CR/904/2017) (Unreported) dated 12 May 2020 by Kyei Baffour JA sitting as an additional justice of theHigh Court,the Courtheld that; ‘For prosecution to be deemed to have established a prima facie case, the evidence led without more,should prove; 1. That therewereat leasttwo or morepersons 2. That therewas an agreementto acttogether 3. That sole purposefor the agreementtoact together was for acriminal enterprise. Sections 149 and 150 of the Criminal and Other Offences Act, 1960 (Act 29) (as amended by the Criminal Code (Amendment) Act, 2003(Act 646)statesas follows; 9 149.Robbery Aperson whocommits robbery commits a firstdegree felony. 150.Definition ofrobbery Aperson whosteals a thing commitsrobbery (a) if in, and for the purpose of stealing the thing, that person uses force or causes harm to any other person, or (b) if that person uses a threat or criminal assault or harm to any other person, with intent to preventor overcome the resistanceof the other person tothe stealing of the thing. (3) In this section ‘offensive weapons’ means any article made or adapted for use to cause injury to the person or damage to property or intended by the person who has the weapon to use it to cause injury or damage; and ‘offensive missile’ includes a stone, brick or any article or thing likelyto causeharm, damage or injury when thrown. In the case of Frimpong alias Iboman v. The Republic [2012] 1 SCGLR 297 at 300, the SupremeCourtheld that; “…In the instant case, where it was the appellant who had kept guard outside, whilst his accomplices used threat to procure the stolen items and the keys to the BMW car, which he drove 10 away and kept, he was as much guilty of the offence as those who had used the threat because it was he who had facilitated the committing of the offenceand their exitfromthe scene”. The evidence of PW1 shows that both the 1st and 2ndAppellants approached him on 15th April, 2024 at 9:00pm close to a fried rice joint at Kenyasi. The 1st Appellant asked him for money claiming that PW1 stepped on his toes sometime ago and he is suffering so he needs money to buy medicine and PW1 gave the 1stAppellant Ghs 5.00. The 1st Appellant asked him to give the 2nd Appellant also money and he refused. The 2nd Appellant forcefully put his hand in the pocket of PW1 to take away his phone and money. PW1 resisted the 2ndAppellant and struggled with him. The 1stAppellant hit his head with an improvised sign board and his hand with a moulded block to free the 2nd Appellant from his grip. He became unconscious and theAppellants fled the scene with his bag, phone and keys. The evidence of PW1 shows that A1 and A2 acted together on the day of the incident to rob him. PW2 tendered the investigation cautioned statement and charged cautioned statements of A1 and A2 after the trial Court conducted mini trial and overruled objections raised to the tendering of the statements by PW2. The Court admitted the investigation cautioned statement and charged cautioned statement of A1 as exhibits “A” and “B” and the investigation cautioned statement and charged cautioned statement of A2 were accordingly admitted and marked as exhibits “C” and “D”.The medical reportofPW1wasmarkedas exhibit “E”. 11 Inthe Investigation Cautioned Statement of the 1stAppellant, he stated that he met PW1 alone at a bar and PW1 stepped on his foot and it became sore. When he complained to PW1, he pushed him on the ground, he got up and held the hand bag of PW1 and demanded for money. PW1 attempted to removea knife fromhis bag to stab him but he collected the knife and threw it away. He removed One Hundred and Thirty Ghana Cedis (Ghs 130.00) from the bag of PW1 and bolted. He did not touch the phone of PW1 but his friend A2 helped him to overpower PW1. From the facts the incident happened on 15th April, 2024 and the statement of the 1st Appellant was taken on 20th April, 2024. The story of the 1st Appellant in the investigation cautioned statement is not consistent because at the beginning of his statement he did not mention that A2 helped him to overpower PW1. During his evidence in chief on 24th October, 2024,A1 repeated his statement in the investigation cautioned statement that he met PW1 at a bar and PW1stepped onhis footwhichhad asore onit. He however claimed that PW1 assaulted him and injured his mouth and leg and he was taken to hospital by the police. He claimed that the injury sustained by PW1 was as a result of motor accident. He did not say anything about taking One Hundred and Thirty Ghana Cedis (Ghs 130.00) from the bag of PW1. He also did not state that PW1 tried to injure him with a knife and he collected the knife and threw it away. He did not also say that the 2nd Appellant helped him to overpower PW1. His statement in his investigation cautioned statement which he relied on in his charged statement which 12 were both taken earlier when the incident was fresh in his mind was totally different from his evidence on 24th October, 2024 six months later in which he totally denied his involvement in the robbery. The mention of the 2nd Appellant in his investigation cautioned statement and the omission of the 2nd Appellant in the 1st Appellant’s evidence – in – chief in the Court’s view was deliberate to cover up the fact that he acted togetherwiththe 2ndAppellant. In his evidence in chief on 29th October, 2024, the 2nd Appellant said that on the day of the incident he was going to buy something when he heard an altercation going on. He got closer and found that PW1 was struggling with the 1st Appellant. PW1 persisted although people told him to stop. He immediately pushed PW1 off the 1stAppellant. He does not know what led to the fight between PW1 and the 1st Appellant. He only met them fighting and that he did not conspire with the 1st Appellant to rob PW2. The 2nd Appellant stated in his investigation cautioned statement which was obtained on 20th April, 2024 that on 15thApril, 2024 at 9:30pm he was walking with the 1stAppellant near the fried rice joint on the main Kenyasi number two site road. He excused the 1st Appellant to go and buy something. On his return he found the 1st Appellant and PW1 fighting withPW1 beating upA1 mercilessly. He held the shirt of PW1 and pulled him from the 1st Appellant. He did not beat PW1 but just removed a phone from the pocket of PW1.According to the 2ndAppellant, PW1 leftA1 and attacked him for his phone and he gave the phone to PW1. The 1stAppellant 13 went for a metal to hit the head of PW1 and PW1 brought out a knife and the 1st Appellant went for a block to hit the hand of PW1. While he was struggling with PW1 the 1st Appellant snatched the hand bag of PW1 which was around his neck and run away with it. He freed himself from PW1 and joined the 1stAppellant. The 1stAppellant toldhim that he took One Hundred and Thirty Ghana Cedis (Ghs 130.00) from the bag of PW1 and they spent the money on narcotic drugs and food. On 19th April, 2024 he was arrested together with the 1stAppellant at Kenyasi number one old site and handed overtothe Police. Counsel for the Appellants argued that the trial Judge relied heavily on the statements of the Appellants which they objected to and he overruled their objection. It is important to note that the Appellants did not deny that they gave statement to prosecution. The 1stAppellant admitted that he gave statement to prosecution but there may be statements in it that he did not make. The 2nd Appellant claimed that he was forced to thumbprint his Investigation Cautioned Statement. The trial Court conducted mini trial where prosecution called independent witnesses to testify that the statements were obtained from the accused persons voluntarily in their presence and they explained the statements to the accused persons and made certifications on the statements. It is useful to note that prosecution’s evidence to support a charge in criminal matters include evidence led by its witnesses and exhibits prosecution obtains 14 from its investigations including investigation cautioned statements and charged cautioned statementsobtained fromaccused personsvoluntarily. The record shows that the trial Court conducted mini trial and found that the statements were obtained from the accused persons voluntarily before they were admitted. Therefore, the trial Judge cannot be faulted in relying on the said statements which form part of prosecution’s evidence before the Court. This Court has already compared the statements of the Appellants with their evidence in chief and found their statements to be contradictory. The 2nd Appellant’s investigation cautioned statement seems to agree with the evidence of PW1 but his claim that he came to meet PW1 and A1fighting, in the Court’s view is only anafterthought calculated to escape punishment. The Court is convinced from the evidence of PW1 that bothAppellants approached him at the same time. In like manner both Appellants fled the crime scene and went to the same hideout were they were found and arrested. It can therefore not be true that the 2nd Appellant was passing by and he saw PW1 and the 2nd Appellant fighting and he separatedthem. It is useful to note that in the Frimpong @ Iboman case cited supra one of theAppellants sat outside and kept guard for the robbery operation to go on but the Court found him guilty of robbery because by keeping guard outside he facilitated the execution of the robbery plan. How much more A1 who used two offensive missiles, a sign post and a moulded block to hit the head and arm of PW1 and rendered him unconscious which 15 enabled him and the 2nd Appellant to exit the crime scene with the Complainant’s handbag, money and keys. The 1st Appellant claimed that PW1 pulled a knife on him but the said allegation was not substantiated. Relying on the Iboman case, this Court would have found both accused person’s guilty of conspiracy to commit robbery and robbery.However,the Courtwould give the2ndAppellant the benefit ofadoubt. Forthe foregoing reasons, the Court holds the view that Prosecution proved that A1 and A2 acted togethertostealthehandbag, money and keysbelonging toPW1. That the 1st Appellant facilitated the robbery in using offensive missiles such as an improvised sign post to hit the head of PW1 and a moulded block to hit the arm of PW1 which caused PW1 to become unconscious. PW1 was not able to resist the Appellants who fled the crime scene with his hand bag, money and keys. The fact that the stolen items belonging to PW1 were not retrieved from the Appellants does not dispute the fact thatthe Appellants conspired tocommit robberyagainst PW1. The evidence led by the 1st Appellant and the 2nd Appellant did not raise doubts in prosecution’s case but rather affirmed prosecution’s case that A1 and A2 acted together with a common purpose to rob PW1. Although the 1st Appellant sought to say in his evidence that he met PW1 alone at the bar, his Investigation Cautioned Statement showed that A2 was around. Although the 2nd Appellant also sought to say that he was not with A1 when a fight ensued between the 1st Appellant and PW1, his Investigation 16 Cautioned Statement showed that he was with the 1st Appellant when the incident happened. The Court therefore agrees with Counsel for the Republic that it was not incidental but strategic when the 1st Appellant followed up the 2nd Appellant’s theft with brutal physical violence by striking the Complainant’s head with a sign post and hitting the Complainant’s arm with a block. The loss of consciousness of the Complainant after he was assaulted and the Appellants fleeing the scene with the Complainant’s hand bag, money and keysare all proofof execution ofa coordinated plan. TheAppellantsdid not only flee the scene but they went into hiding together and they were arrested in their hideouts. The Appellants conduct as a whole support a charge of conspiracy. The Republic argued that the trial Court rightly found the 1st Appellant guilty of robbery because the evidence showed that he was the one who physically assaulted the Complainant and the said violence facilitated the successful commission of the robbery because it rendered the Complainant unconscious. Counsel contends that the Appellant’s submission that the facts and evidence do not support the charge of robbery is misconceived and without merit because the trial Judge properly directed himself regarding the evidence onrecord and rightly convicted theAppellants. In the light of the foregoing this Court holds a firm conviction that theAppellants were rightly convicted and sentenced by the trial Court and that the conviction and sentence 17 of the Appellants are supported by the evidence on record. In the circumstance, the Courthereby affirms the convictionand sentence oftheAppellants Count One (Conspiracy to commit robbery): the 1st and 2nd Appellants are each sentenced to servea term of imprisonmentof 15years in hardlabour. Count Two (Robbery): the 1st Appellant alone is sentenced to serve a term of imprisonment of 15 years inhard labour.The sentences in respectof the 1st Appellantare to runconcurrently. The appeal thereforefails in itsentirety and same is herebydismissed. Judgment of the Circuit Court, Hwidiem in theAhafo Region dated 4th November, 2024 presided over by Charles Kwasi Acheampong, Additional Circuit Court Judge as he thenwas, regarding conviction and sentence oftheAppellantsherein is herebyaffirmed. (SGD) JUSTICEJOYCE BOAHEN HIGHCOURTJUDGE 9TH JUNE 2025 18 19