Kisseh v S (CR/0117/2024) [2025] GHAHC 147 (16 May 2025)

IN THE HIGH COURT OF JUSTICE HELD IN ACCRA ON FRIDAY THE 16TH DAY OF MAY 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/0117/2024 KISSEH SAMUEL DAITEY APPELLANT VRS THE REPUBLIC RESPONDENT JUDGMENT The Appellant was charged with the offence of robbery contrary to Section 149 of the Criminal Offences Act 1960 (Act 29) and were arraigned before the Tema Circuit Court on the 14th of September 2021 and on the 20th of September 2021 the charges were read and explained in the Ga-Adangbe language wherein he pleaded not guilty. After a full trial, the court found him guilty and sentenced him to ten (10) years IHL on the 23rd November 2023. It is against this judgment that the appellant filed the instant petition of appeal on the 20th of December 2023 praying for this appellate court to set aside the conviction and sentence and ultimately acquit the appellant. 1 GROUNDS OF APPEAL The sole ground of appeal filed is that: a. That the conviction cannot be supported having regard to the evidence and same has occasioned a substantial miscarriage of justice. It was indicated that further grounds of appeal may be filed upon receipt of the record. The appellant however has not filed any further grounds of appeal upon receipt of the record. In this appeal therefore, it is the sole ground of appeal filed that the appellate court will be considering. FACTS OF THE CASE The facts of the case as given by the prosecution is that the complainant Lauretta Danquah is a teacher residing at Kenya Mangoase Ada whilst accused Kisseh Samuel Daitey is an Okada rider and a resident at Asigbeykope Ada. On 1/2/2021 about 8:00pm, the complainant boarded the accused person's motorbike from Kasseh to Kenya Mangoase where she resides together with her little sister. On reaching a section of the road at Senakeykope junction about hundred meters from the main Accra- Aflao major road, the accused deliberately stopped the motorbike, and the complainant alighted. The accused person struggled with the complainant with the intent of raping her and in the process tore the waist band of the complainant's trousers. The complainant kept shouting for help but to no avail. The accused person sensed danger and sped off with his motorbike and abandoned the complainant. About three minutes later, the accused came to the scene on foot and naked. He again struggled with the complainant and succeeded in undressing her and also robbed her of her iPhone 6 mobile phone. However the accused person upon sighting a motorbike's light approaching, 2 abandoned complainant and entered a nearby bush. The complainant lodged a formal complaint with Kasseh Police. On 30/05/2021, the accused person was arrested. After investigations, the accused was formerly charged and put before court. DETERMINATION OF THE GROUNDS OF APPEAL The sole ground of appeal is that the conviction cannot be supported having regard to the evidence on record and same has occasioned a substantial miscarriage of justice. A.N.E. Amissah in his book titled "Criminal Procedure in Ghana” at pg 290 wrote "Perhaps the commonest ground of appeal against conviction is that “the conviction cannot be supported having regard to the evidence.” It is an established fact and same held in a plethora of authorities that where a party files the omnibus ground of appeal, it is a call on the appellate court to evaluate the whole of the evidence to determine that issue. This is in consonance with the principle that an appeal is by way of re-hearing with the appellate court having all the powers of the trial court. The settled principle of law is that the appellate court is enjoined by law to scrutinize the evidence led on record and make its own assessment of the case as though it was the trial court. Where the court below comes to the right conclusion based on the evidence and the law, the appellate court does not disturb its judgment. On the other hand, the judgment of the lower court attracts being upset on appeal where the judgment is unsupportable by the facts and or the evidence. See: Nkrumah v Attaa (1972) 2 GLR 13 C/A, Apaloo v R (1975) 1 GLR 156 An appeal is in effect a rehearing of the case and as such, an appellate Court is at liberty to sieve through the evidence on record with a view to determining whether the 3 decision the appellant is appealing against can be supported or not. The appellate court is therefore in as much the same position as the trial Court. I would therefore on that background proceed to analyze the entire evidence on record to determine if the evidence on record supports the conviction of the accused person by the trial Circuit Judge. I would therefore be considering the entire record of appeal as well as the written submissions of counsel for the appellant and the respondent. THE LAW ON ROBBERY AND ITS APPLICATION TO THE EVIDENCE LED It is provided in Section 149 of Act 29/60 that: “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.” Section 150 Act 29 defines Robbery as: “A person who steals a thing commits robbery (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 prevent or overcome the resistance of the other person to the stealing of the thing 4 For the prosecution to succeed in a charge of robbery, they have to prove that in stealing the thing the accused persons herein used force or harm to the victim for the purpose of stealing and the accused person had the intent to overcome the resistance of the victim or any other person to the stealing of the thing. In the case of Frimpong @ Iboman v Republic [2012] 1 SCGLR 297 His Lordship Dotse JSC stated thus: For the offence of conspiracy to rob, the prosecution must prove “. Agreement to commit the unlawful act of robbery – acting for a common design. There need not be any prior deliberation. ii. Intention on their part to commit that unlawful act – this was manifested in their common pursuit of the robbery agenda. The prosecution called two witnesses, PW1 in the person of Manuella Nhyira Danquah a ten year old and the police investigator in the person of Detective Corporal Dennis Amponsah as PW2. PW1 the sister of the victim Lauretta Danquah testified that on the day of the incident which was the 1st of February 2021, at about 8:00pm, she and her sister the victim boarded the accused person’s motor bike from Kasseh to Mangoase Ada. She said that along the Senakekope-Mangoase feeder road, the accused person stopped the motor bike, and they alighted. She said that the accused person began struggling with the victim and as the struggling ensued, she started shouting but to no avail. She said the accused person then sped off and the victim placed a call for help. At about five minutes later, the accused person returned naked without his motorbike and started 5 struggling with the victim again and pushed her to the ground and took her mobile phone. She added that the accused person spotted the lights of an approaching motorbike, and he run into the bush and they were later rescued by one Adams Kwabla and Ishmael Kabutey who took them home. The victim could not appear in court to testify as the court was informed that she was outside the country to further her studies. Her witness statement filed was therefore admitted into evidence as exhibit F. In her witness statement, she stated that while she and the PW1 were on the motorbike, the accused person engaged her in an unpleasant conversation which made her suspicious. She recounted how the accused person initially struggled with her and took her mobile phone, but she managed to take it back and he left the scene and later returned naked as she was in the process of calling for help on the phone and how the accused person slapped her and took her phone and run back into the bush. The PW2 also tendered into evidence the caution statement of the appellant as exhibit A, a further caution statement of the accused as exhibit B, the pictures of the accused person as exhibit C series, pictures of the scene as exhibit D and picture of the torn trouser of the victim as exhibit E. The PW2 with regards to how the accused person was arrested, testified that “the complainant told me that after the incident on that day, she again met the accused person in Kesseh Ada town which they exchanged contacts. Out of that the complainant had his pictures from whatsapp and brought same to me.” 6 In the caution statement of the accused person exhibit A, the accused person told the police that he never committed the offence and that he does not know the victim and that about a month prior to his arrest, the victim met him in town and asked of his name and where he stays. He said that he demanded to know the reason for the request, but she did not answer and left. In the further caution statement exhibit B, he stated that he was riding an okada belonging to one Dogbeda of Kadja Ada however he took the motorbike from him and sold it which he cannot recall the date. The evidence of the prosecution led is that for the purpose of stealing the mobile phone of the victim the Accused/ Appellant herein per the story of the PW1 struggled with the victim, pushed her to the ground and took the mobile phone and fled from the scene when he spotted the approaching lights of a motorbike. The evidence of the prosecution is therefore that the accused person caused harm to the victim for the purpose of stealing and the accused person had the intent to overcome the resistance of the victim or any other person to the stealing of the thing. Per Section 1 of the Criminal Offence Act 1960 Act 29, Harm in law, means “any bodily hurt, disease, whether permanent or temporary” Since the victim did not testify, the PW1 remained the sole witness who was also an eyewitness to the incident. The witness statement of the victim which was admitted into evidence was not tested under cross examination and as such this court will not place any weight on it. In the case of Fabrina Ltd v Shell Ghana Ltd [2011] SCGLR 429, it was 7 held that “The credibility of oral evidence is normally tested through cross-examination”. Therefore in instances where a person had appeared in court to give evidence but did not appear in court for such evidence to be tested under cross examination, the weight attached to such evidence is minimal as the statement has not been subjected to cross examination. In LARYEA v OFORIWAH [1984-86] 2 GLR 410, the Court of Appeal stated that, “a party was entitled to test, under cross-examination, the veracity and the accuracy of the evidence-in-chief given by a witness produced by the opponent; and if through no fault of his, he was denied the opportunity of cross-examining on the evidence-in-chief of his opponent’s witness, then the whole of the evidence given by that witness ought to be expunged from the record”. The evidence of the PW1 however who was the sole eyewitness is enough to ground a conviction if same is credible. As Dotse JSC in Gligah & Atiso v The Republic [2010] SCGLR 870 proffered an answer at pg 887: “We have always held the view that in establishing the standard of proof required in a civil or criminal trial, it is not the quantity of witnesses that a party upon whom the burden of proof rests, calls to testify that is important, but the quality of the witnesses called and whether at the end of the day the witnesses called by the party have succeeded in proving the ingredients required in a particular case. In other words, does the evidence led meet the standard of proof required in a particular case?” This court finds the evidence of the PW1 credible to support the decision of the trial judge requiring the accused person to open his defense. 8 CASE OF THE ACCUSED PERSON The accused person testified and relied on his witness statement filed for him on the 25th of August 2023 and stated that “In December, 2020 one woman whom we normally refer to as Freda's mum gave us a contract to do the screeding and plastering works for a six (6) chamber and hall apartment at Gbatana Road, Kasseh-Ada together with six (6) other masons. We started the masonry work in December, 2020 and went for break on the 31st December, 2020. We resumed work on site on the 15th of January, 2021 and completed the work on 7th February, 2021. Due to the building contract, I suspended my Okada business from December 2020 to the 7th of February 2021. It is the usual practice that I suspend my Okada business any time I get a building contract as a mason and use the bike as a means of transport to the construction site. Due to this I was engaged in my construction business on the day of the alleged crime and couldn't have carried the complainant on my bike on the day of the alleged crime.” The appellant called no witnesses in support of his case. The evidence of the appellant at the trial is that he was somewhere else at the time the prosecution claims the incident occurred and as such he could not have robbed the victim. That in itself is putting up the defense of the plea of alibi. Section 131 of Act 30/60, of the Criminal and other offences (Procedure) Act, 1960, (Act 30), governs the practice and procedure in alibi, and provides that “(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…" 9 A.N.E Amissah addressed the law on alibi in his book Criminal Procedure in Ghana. At page 136 and 137 on the heading “DEFENCE OF ALIBI”, he states that: “if an accused puts forward an alibi, as an answer to a criminal charge, the accused 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… an accused who intends to put forward as a defence a plea of alibi is bound to give notice of it to the prosecutor or his counsel with particulars as to time and place and of the witnesses by whom it is to be proved, prior to the sitting of the trial court to which the case is committed to trial…if the accused refuses to furnish the required particulars the case must proceed but no evidence in support of the alibi shall be admissible in evidence. It would appear that where the court does not direct that particulars be given and the prosecution does not object to the trial proceeding, the accused may make his defence of alibi and call his witnesses in support” Since the plea of alibi is a defence an accused person raises in a trial, the burden on the accused person is to call witness in respect of the alibi or lead evidence to raise a reasonable doubt in the case of the prosecution. The onus to lead evidence on the plea of alibi was on the person asserting it. This he may discharge on the balance of probabilities. Section 11(3) of the Evidence Act NRCD 323 provides: — "(3) In a criminal action, the burden of producing evidence when it is on the accused as to any fact the converse of which is essential to guilt, requires the accused to produce sufficient evidence so that on all the evidence a reasonable mind could have a reasonable doubt as to guilt". This is for the appellant to lead such evidence to cast doubt or discredit the evidence proffered by the prosecution. In the case of KWESI VRS. THE REPUBLIC [1977] 1 G.L.R. 448, the Court of Appeal held that "it was wrong for a trial judge to think that an alibi, because it was called a defence, raised some burden on the defence to establish it. Where an 10 alibi defence was raised, the onus of proof lay on the prosecution in all cases. In setting up an alibi an accused person was doing no more than denying that the prosecution had proved their case, and if he was able to raise a reasonable doubt about his guilt, he was entitled to be acquitted” Since it is a defence that an accused person raises, this appellate court like the trial court is guided to determine the defence as to whether it raises a reasonable doubt in the case of the prosecution as was outlined in the case of LUTTERODT v COMMISSIONER OF POLICE [1963] 2 GLR 429 at page 439 as follows: “Where the determination of a case depends upon facts and the court forms the opinion that a prima facie case has been made, the court should proceed to examine the case for the defence in three stages: (1) Firstly it should consider whether the explanation of the defence is acceptable, if it is, that provides complete answer, and the court should acquit the defendant; (2) If the court should find itself unable to accept, or if it should consider the explanation to be not true, it should then proceed to consider whether the explanation is nevertheless reasonably probable, if it should find it to be, the court should acquit the defendant; and (3) Finally quite apart from the defendant’s explanation or the defence taken by itself, the court should consider the defence such as it is together with the whole case, i.e., prosecution and defence together, and be satisfied of the guilt of the defendant beyond reasonable doubt before it should convict, if not, it should acquit. See also AKILU v THE REPUBLIC [2017-18] 1 SCGLR 444. Per the record of appeal, at page 28, during the case management stage, the trial judge enquired from the accused person who was represented by counsel whether there is the 11 possibility of a plea of alibi being raised to which it was answered that “My Lord for now no”. Be that as it may, when the appellant testified, he called no witnesses or led any evidence in support of the said alibi which he raised. The appellant herein at the trial having denied the offence, and presented the case of mistaken identity, then the evidence of the prosecution linking the accused person or appellant to the crime must be strong and cogent. In a criminal trial the prosecution is obliged to lead evidence to identify the accused as the person who committed the crime for which he/she is charged, identification may take several forms. It may be proved or disproved not only by direct testimony, or opinion evidence, but presumptively by similarity or dissimilarity of personal characteristics such as age, height, size, hair, complexion, voice, handwriting, 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 including identities of mental qualities, habits and disposition. See IGNATIUS HOWE V THE REPUBLIC, CRIMINAL APPEAL, No J3/3/2013, 22ND MAY 2014. In the case of Adu Boahen vrs the Republic (1973) GLR 70 CA, it was held that where the identity of the accused person was in issue there can be no better proof of his identity than the evidence of a witness who swore to have seen the accused committing the offence. Also in Dogbe v R (1975) GLR 118, it was established that in criminal trials, the identity of the accused as the person who committed the crime might be proved either by direct 12 or circumstantial evidence and other relevant facts from which the identity of the accused might be inferred by the court. In the case of IBRAHIM RAZAK & ANOR v. THE REPUBLIC [25/04/2012] CRIMINAL APPEAL NO. J3/6/2011 “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 13 like the height of the person given by the oral evidence by prosecution witnesses on oath in court.” At the trial, the PW1 was able to identify the accused person as the one who robbed the victim. She stated that the accused person took the phone from the victim and when he saw the motor lights of an oncoming motor bike, he sped off. It is the view of the court that due to the period that the accused person spent in struggling with the victim, that afforded the PW1 the opportunity to identify him positively which she did. I have considered the defence of the appellant and I find no truth in same. The trial judge rightly considered the defence of the appellant and it appears the nature of the defence did not impress the trial judge which led to the rejection of the defence. I am convinced from the record and I am left in no doubt that the trial judge properly assessed the evidence on the record and I do not see any reason to fault the assessment. The prosecution also at the trial proved its case beyond reasonable doubt. The identification of the appellant as the perpetrator of the offence was not flawed and the trial judge was right in relying on it to come to the conclusion that it was the appellant who robbed the victim. The trial judge was therefore not in error when she found that the accused person appellant had robbed the victim and proceeded to convict him. With regards to the sentence, Robbery is a first-degree felony and the punishment is prescribed in the Criminal (Amendment) Act, 2003 (Act 646). The minimum sentence for the offence is dependent on whether the offence was committed with an offensive weapon or offensive missile or not. It is provided in Section 149 of Act 29/60 that: 14 “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.” Section 206 (3) defines what an offensive weapon is: “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”. Per the above, then the appellant was liable to a sentence of 10 years and above as there was no use of an offensive weapon. The appellant was sentenced to ten (10) years IHL which was within the statutory limits. The result of the foregoing is that the conviction and sentence of the appellant was proper and this court finds no reason to disturb same. The appeal in that vein fails and same is dismissed. PARTIES: APPELLANT PRESENT COUNSEL: PATRICIA MISSODEY WITH BERNICE SARPEH FOR MOSES ATIIGA FOR THE APPELLANT PRESENT FREDERICK ADU-GYAMFI FOR THE REPUBLIC/RESPONDENT PRESENT 15 MARY M.E YANZUH J. HIGH COURT JUDGE 16