Gyamfi v The Republic (CC16/082/2024) [2025] GHAHC 196 (14 May 2025)

INTHESUPERIOR COURTOF JUDICATURE, HIGH COURT OF JUSTICESITTING ATSUNYANI ON WEDNESDAY,THE 14TH DAY OFMAY, 2025BEFOREHIS LORDSHIP JUSTICE NATHAN P.YARNEYESQ SUIT NO.CC16/082/2024 KWAKUGYAMFI alias KwakuProtoa APPELLANT VRS. THE REPUBLIC RESPONDENT JUDGMENT The Convict/Appellant (hereafter referred to as Appellant) was sentenced to a term of imprisonment of 4 years having been found guilty of the offence of Threat of Death, contrary to Sec. 75 of the Criminal and Other Offences Act, 1960, Act 29 by the Circuit Court,Goaso, on20th October,2023(Coram:H/H CharlesKwasiAcheampong). Upon a successful application for extension of time to appeal, he filed on 18th July, 2024 aNotice ofAppealin whichhe set downtwo groundsofappeal,towit: a. That the sentence was harsh and excessive having regard to the circumstances of thecase; and 1 b. That the conviction cannot be supported having regards to the circumstances of thecase. The facts onwhich the case is based are asfollows. One Adwoa Brenya, now late is said to have entered into a customary farming tenancy agreement (abunu) with the Complainant. She advanced to him a portion of land to farm with cocoa, and on maturity, as was the case with such arrangements, the farm was to be shared equally between Adwoa Brenya and the Complainant. This was done, but incurred the displeasure of the Appellant. A dispute arising was placed before the Chief of Kwapong to resolve. It led to the Complainant being asked to take possession of his share of the land pursuant to the agreement with Adwoa Brenya. However, on 19th November, 2020 at around 9.30am, the Appellant is said to have gone to the residence ofthe Complainant atAfodowaand told him that if he entered the cocoa farm again he would shoot to kill him. Again around 3.30pm on the same day, the Appellant is said to have gone to the office of the Complainant at PBC, Sankore and threatened to kill him. He is said to have left and later returned with a cutlass in hand, upon which the Complainant was asked to leave the scene. He therefore lodged a complaint with the Police and the Appellant was accordingly arrested and processed for the prosecutionthat led tohis conviction. 2 In finding that the offence of threat of death had been established by the Prosecution, thetrial judgespoke asfollows: The fact that accused person wielded a cutlass while he made the threat in question certainly had the tendency of putting complainant in fear of death. In fact, mere words alone, has been held to be sufficient to put one in fear of death, how much more wiled (sic) a cutlass while uttering such unwholesome words. [see: Patterson Ahenkang & 2 Ors. Vrs. The Republic (2014) JELR 68267 (CA)]. This Court accordingly finds that the offence of threat of death has been duly established by Prosecution beyond reasonable doubt. Accused is found guilty of th offence and hereby convicted. Yes, it may be argued that from the facts the utterance of the threat, particularly on the second occasion, was not with theAppellant holding a cutlass, but the facts suggest that the utterance of the second threat on one hand, and the carrying of a cutlass, were acts contemporaneous of each other, contextually suggesting to any reasonable person faced with such situation that theAppellant, having uttered words threatening a person with death, being found to be holding animplement he had referred to in his threat, could be deemed to be on course to carry out the threat. The facts and evidence, as found by this 3 Court from the Record ofAppeal, do support the conviction reached by the Trial Judge. Nomiscarriage ofjustice wasoccasioned therefore. The TrialJudge wentonfurther tosay thus: Given the spate at which crimes of such nature are on the ascendency within the jurisdiction of this Court of which I take judicial notice of, it is essential that a sentence is imposed which is aimed at deterring likeminded persons from committing similar offences. Prosecution has informed the Court that accused person is not known and as such is a first time offender. Taking into consideration these factors This Court accordingly sentences Accused person to serve a term of imprisonmentof four(4) years imprisonmentinhard labour. In considering this appeal this Court must be guided by Sec. 31(1) and (2) of the Courts Act, 1993, Act 459. In respect of criminal appeals, an appellate court will allow an appeal if the verdict, conviction or acquittal is found by the court to be unreasonable, or not supported by the evidence on record. The court will also allow an appeal if the judge was clearly wrong on a question of law or fact, or where there was a miscarriage of justice. The appeal will be dismissed, however, if no substantial miscarriage of justice is occasioned by the verdict or conviction, or that the point raised on appeal is one that 4 is merely technical, a procedural error, a defect in the charge sheet or bill of indictment, where there is evidence to support the offence charged, or another offence which if the accused had could havebeenconvicted uponif thatoffence had beencharged. By the above therefore, the Appellant must prove that on either of the grounds of appeal, a miscarriage of justice was occasioned by his conviction, that his conviction was unreasonable on the face of the evidence adduced, or that the judge, on some question of law or fact or both, was wrong in his determination of same. He failed to do so, and the contentsoftheRecord ofAppealbear this out. An appeal against a conviction is a manifest objection to the soundness of the reasoning that led to the conviction. It simply is an allegation that the court was wrong.An appeal on the sentence, however, may suggest that the conviction was right, but the punishment unreasonable, either harsh, as mostly always alleged by convicts, or insignificant ,as would the prosecution. An appellant should be careful in making these dual arguments to avoid being considered to be simply testing possibilities, as against taking a step on remorse, or actually raising a significant legal issue which, when considered, can lead to doubt cast onthe soundness ofthe conviction. Withthatin mind the Court will proceed to evaluate the arguments presented in support of the two grounds ofappeal. 5 The events, as gleaned from the evidence adduced and contained in the Record of Appeal, werethefollowing: 1. The Appellant approached the Complainant at his house and uttered the words threatening death. There were no witnesses. It was the Complainant’s word against thatofthe accused. 2. The Appellant later, on the same day, approached the Complainant at his office and again uttered the words threatening death. He thereafter leaves. This is witnessed by the sonofthe Complainant, PW1. 3. TheAppellant, after leaving the Complainant’s office, later is seen returning with a cutlass in hand. He is seen by the son of the Complainant. The Complainant is advised toleavethescene by his son, and his sonalso flees the scene. 4. The carrying of a cutlass was almost contemporaneous to the threat made by the Appellant asecond time. 6 The case of the Prosecution hinged on the testimonies of the Complainant and his son PW1. The Appellant, from the Record of Appeal, did not appear truthful in his testimony. His prevarication was very apparent. In cross-examination it is recorded that at one point he claimed that the Complainant had cultivated his land unlawfully. In the same vein, he also alleged that he gave the land to the Complainant and was in the processofpreparing documents forhim. Which is which? Yet, at another point in cross-examination he claimed to have shared the land given on ‘abunu’ to the Complainant, and had given the Complainant his due share of the land. One wonders, on the face of the contradictions aforementioned, what the intention of theAppellant waswhentestifying. The Appellant, besides, did not endear himself to the trial court. On three occasions he jumped bail and Bench Warrants had to be issued for his arrest. Uponthe third time, his bail was revoked, and he remained in custody for the duration of the case.As a result of his incessant jumping ofbail his trialdelayed significantly. The predicate of all the events and claims by the Complainant and the Appellant was a claim over land. The Complainant had been given the land on ‘abunu’ terms by one Adwoa Brenya, a relative of the Appellant. The Complainant, over years farmed the land by cultivating cocoa. On maturity of the plantation, it was shared equally between 7 the Complainant and the said Adwoa Brenya. In comes the Complainant with his objections, whatever they are. An impasse results in the matter being resolved at the palace of the chief of Kwapong. It is found that the Complainant was entitled to his share given, and he was asked to proceed and continue tohold same. This result is what appearstohaveincensed theAppellant for which reasonhe resorted tothreats. Azu-Crabbe JA (as he then was) in the case of Kwashie vs. Republic [1971] 1 GLR 488 at493spoke eloquentlyas follows: In determining the length of sentence, the factors which the trial judge is entitled to consider are: (1) the intrinsic seriousness of the offence; (2) the degree of revulsion felt by the 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 violentmanner in which the offence wascommitted. 8 In Amaniampong vs. Republic Criminal Appeal No. J3/10/2013 Judgment dated 28th May,2014, Rose Owusu JSC opined as follows: Punishment is justifiable as a deterrent not only to the criminal himself, but also, and even more importantly, to those who may have similar criminal propensity. A way must be found to protect society from the activities of these criminals, and to me, this way is confinement for a considerable length of time. Rose Owusu JSC, further, in Samuel Agoe Mills Robertson vs. Republic Criminal AppealNo. J3/4/2014Judgmentdated 28th May,2014reasonedasfollows: The principles upon which the court would act on appeal against sentence were that it would not interfere with a sentence on the mere ground that if members of the court had been trying the appellant they might have passed a somewhat different sentence. The court would interfere only when it was of opinion that the sentence was manifestly excessive having regard to the circumstances of the case, or that the sentence was wrongin principle. 9 The Appellant was seen and heard, both threatening the Complainant by uttering words threatening the death of the Complainant should he enter a farm he had farmed and won a share thereof upon an ‘abunu’ agreement. The Appellant was also seen in a threatening manner that led the Complainant, in fear for his safety to seek protection. It is the view of this Court that the trial judge was correct in his assessment of the evidence, and his finding that the prosecution had proven the guilt of the Appellant beyond reasonable doubt is wellfounded. Under Sec. 296(2) of Act 30 of 1960, the punishment of an offence described by a statute as being a second degree felony, but without a specified punishment, the allowable sentence upon conviction is a maximum of 10 years imprisonment. The Appellant received less than half of the said sentence, 4 years. It is the view of this Court that the sentence levied by thetrial judge,considering the totality ofthe circumstances, wasfair. Society can only function properly when grievances are channeled through the provided means of redress – the courts mainly. It cannot function in peace if everyone aggrieved simply lifts a weapon to threaten or wound. That will be an unfortunate and brutish existence and only lead to rancour and chaos. Punishing to deter such conduct isright and necessary. 10 Let it be that incarceration has taught the Appellant a good lesson, that foolish bravado is not bigger than the strong arm of the law. His conduct should never be repeated, and of course, his punishment so far should have provided him with opportunity to reflect long and hard over his conduct. If he has done so and inevitably found his true size in the face of the law of the land, then he should be allowed the opportunity to rejoin society,hopefully,with moreresponsiveness tohis responsibilities towardsothers. The Supreme Court in Ignatius Howe vs. Republic, Criminal Appeal No. J3/3/2013, Judgmentdated 22ndMay,2014hasreasoned as follows: In determining appropriate sentence to impose, a court of law is obliged to weigh all the aggravating factors as against whatever mitigating factors brought to the court’s attention. The aggravating factors include: the amount of force used by the accused or perpetrator, the amount of injury inflicted upon the victim(s), whether or not the victim falls within a category of vulnerable persons such as old age or sickness, whether this was a planned offence, time of the offence such as night, group or gang attack, dehumanizing actions. The possible mitigating factors include less use of force, less injury, young offender, low mental capacity, spur of the moment, daylight, and single offender. 11 It is true that a sentence should deter, among several objectives, but that should not be a licence to decree excessive incarceration (see Apaloo vs. Republic [1975] 1 GLR 156). The sentence of4years wasnotexcessive, in thecircumstances. Having tasted the wrath of the State, the Appellant, in hope of reform and repentance, is granted some respite outofmagnanimity,andthe said sentence is reduced from4yearsto 3years. (SGD) NATHANP.YARNEY (JUSTICE OFTHE HIGH COURT) 12