Obour v The Republic (BON/SYN/HC2/F15/011/2025) [2025] GHAHC 188 (17 April 2025)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, SITTING AT SUNYANI, COURT ‘2’ ON THURSDAY, THE 17TH DAY OF APRIL 2025 BEFORE HER LADYSHIP JUSTICE WINNIE AMOATEY-OWUSU, JUSTICEOF THE HIGHCOURT CASE NO: BON/SYN/HC2/F15/011/2025 KWADWOOBOUR APPELLANT VRS. THEREPUBLIC RESPONDENT JUDGMENT This appeal fulcrums on the decision of the Circuit Court, Berekum. The Appellant was arraigned before the trial court on 19th July 2024 on two charges, all contrary to the Criminal Offences Act, 1960 (Act 29). Count one was the use of offensive weapon and count two, causing harm contrary to Section 70 and 69 respectively of Act 29. He pleaded guilty Page1of11 with explanation to count one but guilty simpliciter to count two. The same day, the Appellant was remanded into prison custody to reappear on 2nd August 2024. On 2nd August 2024, upon his explanation which the trial judge rejected as being unreasonable, the trial judge convicted him on both counts and proceeded to sentence him to two years’ imprisonment in hard labour on count one and ten years’ imprisonment in hard labour on count two.The sentences wereto runconcurrently. Being aggrieved by the sentence, the Appellant filed the instant Notice of Appeal pursuant to leave granted by this Court on 13th November 2024 on the sole ground that the sentence is extremely harsh having regard to the circumstances ofthecase. A summary of the prosecution’s facts accompanying the Charge Sheet presented at the trial court is that the complainant/victim, Eugene Obour is an apprentice car mechanic. The Appellant is the complainant/victim’s biological father. They are both resident at Seikwa. On 22nd June 2024, at about 7:00 p.m., the Appellant and the victim’s mother, Faustina Adomah, Page2of11 had a misunderstanding about their children, Gideon Opoku and Atta who have been playing football in the house all the time. The Appellant took firewood intending to hit the victim’s mother on three occasions but she was able to block all the attempts with her hand. Later, the victim’s sister, Ama Penya intervened and the Appellant dropped the firewood and went into their kitchen. While the victim’s mother thought the Appellant had calmed down and she was having a conversation with Ama Penya, suddenly, the Appellant came out with a cutlass and on her blindside, raised the cutlass to slash her from behind. The victim appeared and tried to stop the Appellant from harming his mother but the Appellant intentionally used the cutlass to slash the victim’s right hand causing harm to his right index finger. The victim rushed to the Seikwa Police Station and made a plaint against the Appellant following which the Appellant was arrested. Police Medical form was issued to the victim to attend any Government Hospital for treatment which he did and returned the medical form duly endorsed. The victim was first sent to the Seikwa Health Centre for treatment, then referred to the Berekum Holy Family Hospital and further referred to the Sunyani Regional Hospital. Page3of11 The Appellant admitted the offence in his investigation cautioned statement and after investigation, he was charged with the offences thereinand arraigned before the trialcourt. It is provided in Article 19(2)(c) of the 1992 Constitution that an accused is presumed innocent until he is proved guilty or he pleads guilty. Where an accused pleads not guilty to the charge, the burden rests with the prosecution to prove the charge against the accused beyond reasonable doubt. The law is also settled that an appeal is by way of rehearing. See Amankwah v. The Republic (J3/04/2019) (2021) GHASC 27 dated 21st July 2021 (unreported). Be that the Appellant was convicted on his own plea and despite him attacking only the sentence in this appeal, it is my foremost duty to evaluate the entire evidence on record to determine based on the facts and law, if the prosecution’s facts support the charge, and if found that the facts support the charge, then I shall proceed to consider the appropriateness ofthe sentence imposed. Page4of11 Although per the Notice of Appeal, the Appellant does not challenge his conviction, in his written submission, counsel for the Appellant submits that the offence of use of offensive weapon for which the Appellant is charged under count one is a first degree felony and triable on indictment and hence, the Circuit Court did not have jurisdiction to try it. This position is wholly supported by counsel for the Respondent who through his written submission has urged this Court to quash the Appellant’s conviction oncount one forwant ofjurisdiction. Jurisdiction is the authority of a court to determine a matter before it. A court’s jurisdiction is conferred by the Constitution or statute. Where a court determines a matter without jurisdiction, the proceedings and outcome are null and void. The question of jurisdiction is so fundamental that it may be raised at any time, even for the first time, on appeal. Because it is so fundamental, the court may suo motu raise it. See Sumaila Bielbiel v. Adamu Dramani [2011] 1 SCGLR 132 @ 141. In Bimpong Buta v. General Legal Council [2003-2004] SCGLR 1200 @ 1215, Sophia Akuffo Page5of11 JSC (as she then was) stated, “Jurisdiction is always a fundamental issue in every matter that comes before any court and, even if it is not questioned by any of the parties, it is crucial for a court to advert its mind toit toassure avalid outcome.” It is provided under Section 70 of Act 29 that a person who intentionally and unlawfully causes harmto any other personby the use of an offensive weaponcommits afirst degree felony. It is further provided in Section 2(2) of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) that, “Anoffence shall be tried onindictment if:- (a) it is punishable by death or it is an offence declared by any enactment tobe afirst degreefelony; or (b) the enactment creating the offence provides that it shall be triable onindictment, andprovides forno othermode oftrial. It is trite learning that the Circuit Court has no jurisdiction to try first degree felonies or offences on indictment. The High Court is the court vested with jurisdiction to try first degree felonies and offences triable on indictment. Against this backdrop, the Circuit Court, Berekum was bereft Page6of11 of jurisdiction when the trial judge took the Appellant’s plea on count one and proceeded to convict and sentence him thereon. As a consequence, I set aside the Appellant’s conviction and sentence on count one for want of jurisdiction. On count two, per the Particulars of Offence, it is stated that on 22nd June 2024, at Seikwa in the Bono Circuit, the Appellant intentionally and unlawfully caused harmtoEugene Obour. The offence of causing harm is created in Section 69 of Act 29 which provides that a person who intentionally and unlawfully causes harm to any other person commits a second degree felony. To successfully prove thecharge, the prosecution must leadsufficient evidence toprovethat: i. The Appellant caused harmtothe victim; ii. The harmwas unlawful; and iii. The harmwas intentional. Page7of11 Upon consideration of the prosecution’s facts presented before the trial court as contained in the Charge Sheet, I am satisfied the said facts support the charge and that the trial judge’s conviction of the Appellant onhis ownguilty plea oncount two should not be disturbed by this Court. It is important to state that Section 69 of Act 29 which creates the offence of causing harm does not provide a specified punishment. Based on Section 296(2) of Act 30, the maximum punishment for the offence of causing harmis tenyears’ imprisonment. The Court’s duty to pass sentence following conviction involves the exercise of discretion. This discretion must be exercised judicially and judiciously. The discretion must be exercised within the remit of the law and as dictated by the circumstances of the particular case under consideration. In Nana Yaw Owusu v. The Republic [2020] Suit no. H2/11/16 dated 16th July 2020 (unreported), the Court of Appeal stated, “Beyond this, sentencing is an exercise of discretion by a trial Judge and as long as the Judge has kept within the confines of what the law prescribes Page8of11 and has also considered the necessary aggravating and mitigating factors before passing the sentence, an appellate court, even if it would have imposed a different sentence must be slow to substitute its own with that of the trial Judge.” See also Samuel Agoe Mills Robertson v. The Republic (Criminal Appeal No. J3/4/2014) dated 28th May 2014 (unreported). As conceded by both counsel in their written submissions, the trial judge gave no reason for the sentence imposed on the Appellant although the record shows that prior to passing the sentence, the Appellant informed the court he was sick and prayed for pardon to seek medical treatment. However, on record, there is no mention of the kind of illness nor medical proof of the same. Also, in the absence of any evidence on record that the accused is known, it is presumed he is a first offender. In determining the appropriateness of the punishment imposed on count two, I am mindful of mitigating factors such as the Appellant being a first offender, the Appellant pleading guilty on his first appearance so that the court did not have to conduct a full trial to determine his guilt, the Appellant’s claim of ill health and the nature of injury sustained by the victim (cut in his right Page9of11 palm) on the one side, and aggravating factors such as the fact that the offence charged is a second degree felony and the instrument used in causing the harm on the other side. The mitigating factors clearly outweigh theaggravating factors. On the above considerations and since every sentence imposed is supposed to serve a five-fold purpose, namely: to be punitive, to deter others, to reform the offender, to appease the society and to safeguard the country, I am of the considered view that the ten-year imprisonment sentence with hard labour imposed by the trial court on count two is harsh and excessive. The appeal thus, succeeds in its entirety. That is, the Appellant’s conviction and sentence on count one is set aside as well as the sentence imposed on count two. Instead, on count two, I impose a sentence oftwo years’ imprisonment onthe Appellant. SGD. WINNIE AMOATEY-OWUSU JUSTICEOF THE HIGH COURT Page10of11 PARTIESAND REPRESENTATION: 1. APPELLANTPRESENT 2. ERICBOAMAHESQ. FOR THEAPPELLANT 3. VIVIAN YAYRA NTI-BOADU (STATE ATTORNEY) WITH ELIZABETH ANYEMING (ASSISTANT STATE ATTORNEY) AND MATHIAS YIR-ERU (ASSISTANT STATE ATTORNEY) FORTHE RESPONDENT Page11of11