The Republic v Yeboah (CC2/002/2023) [2025] GHAHC 199 (12 February 2025)

INTHE SUPERIORCOURTOFJUDICATURE, HIGHCOURTOF JUSTICE SITTINGATSUNYANION WEDNESDAY,THE 12TH DAYOF FEBRUARY, 2025 BEFOREHIS LORDSHIP NATHANP.YARNEYESQ. SUITNO. CC2/002/2023 THE REPUBLIC VRS: LAWSONYEBOAH JUDGMENT The Record of this Appeal shows that on Saturday, 23rd March, 2024, in Berekum – Adom, in the Bono Region, two persons, the Convict-Appellant (hereafter the Appellant), and another known only as Ras and currently at large, robbed one AnkamahJohn(hereafterthe Complainant)ofan amountofGH¢700.00. The facts as presented to the Circuit Court, Berekum, and contained in the Record of Appeal, provided that the Appellant is a barber, and lives in the locality where the 1 offence was committed. The Complainant operates a commercial tricycle with registrationnumber M-24-BR-527. At around 8pm on the fateful day, the Appellant stopped the complainant and booked him for a job at Berekum-Adom. He and his accomplice led the Complainant on a road up till a road block. There they both pulled out pairs of scissors and pointed them at the Complainant, the Appellant’s at his chest, and that of the accomplice on his ribs. The Appellant and his accomplice, with their free hands rummaged through the pockets of the Complainant and took out a total of GH¢700.00. They thereafter released the Complainant who then rode away. Later, on Saturday, 20thApril, 2024, the Complainant saw the Appellant in town and alerted the Police Patrol Team, and the Appellant was arrested. During interrogation he admitted the offence. He directed the Police to the residence of his accomplice, but he was not found. The Appellant was subsequently charged withthefollowing offences: Count1: Robbery, contrary to S. 149 of the Criminal and other Offences Act, 1960, Act 29; Count2: Conspiracy to commit crime towit – Robbery,contrary toSs. 23(1) and 149 ofthe Criminaland otherOffencesAct, 1960,Act 29; Count3: Carrying of an offensive weapon contrary to S. 206(1) of the Criminal and otherOffencesAct, 1960,Act 29;and 2 Count4: Use of offensive weapon contrary to S. 70 of the Criminal and other OffencesAct, 1960,Act 29. The Appellant was arraigned before the Circuit Court, Berekum presided over by H/H Osei Kofi Amoako on Wednesday, 24th April, 2024. The charges aforementioned were read out to him and interpreted to him in Twi. He pleaded Guilty to Counts 1, 2, and 3, and pleaded Not Guilty to Count 4. The prosecution then announced their oral withdrawal of Count 4. Being a first-degree felony, the offence had to be tried by indictment before the High Court. Its inclusion was obviously a mistake by the prosecution. That fact should be enoughtoexplain itswithdrawal. The Circuit Court then proceeded to convict the Appellant on his pleas of Guilty on the threeremaining Counts. He wasthensentenced as follows: Count1 - 10yearsimprisonment; Count2 - 1yearimprisonment; and Count3 - 2yearsimprisonment. In his Petition of Appeal filed on 8th July, 2024 the Appellant raises two grounds of appeal- 3 1. That thesentence is harsh; and 2. That the plea of ‘Guilty’simpliciter entered by the Appellant was not genuine at law. Both the Prosecution and lawyer for the Appellant have addressed the court in writing. Significant arguments have been made by both in support of, and against the Appeal. Outofthese, the courtis able todeliver its judgment,and Iproceed todo so. In respect of Ground 2, which appears sensible to start from, this Court is of the view that it is founded on an insufficient analysis of the record, and also on a misconception of the procedure available in this Court as an appellate court. The appellate jurisdiction of this Court is limited in scope, to only consider the contents of the Record of Appeal before it. It is not permitted to consider any extenuating circumstances outside the RecordofAppeal. The Record shows that the plea of the Appellant was compliant with the procedure provided under S. 171 of the Criminal and other Offences (Procedure) Act, 1960, Act 30.Itprovides as follows: 4 1) If the accused appears personally or,under section 70 (1), by his advocate, the substance of the charge contained in the charge sheet or complaint shall be stated and explained to him, or if he is not personally present, to his advocate (if any), and he or his advocate, as the case may be, shall be asked whether he pleads guilty or notguilty. In stating the substance of the charge the Court shall state particulars of the date, time, and place of the commission of the alleged offence, the person against whom or the thing in respect of which it is alleged to have been committed, andthe section ofthe enactment creating the offence. 2) If the plea is one of guilty the plea shall be recorded as nearly as possible in the words used, or if there is an admission of guilt by letter under section 70 (1), such letter shall be placed on the record and the Court shall convict the accused person and pass sentence or make an order against him, unless there shallappear toit sufficient cause to the contrary. Out of the four charges, the Record shows that he pleaded Guilty to the first three, and NotGuilty tothe 4thCharge.The Record shows as wellthattheAppellant, inmitigation, addressed the Circuit Courtasfollows: 5 I admit that the second accused person and I committed the offence but I plead with the Honourable Courtto forgive me. I have achild to take care of and so I pray that the Honourable Court should consider the plight of my child and let me off the hook. I pledge to refund the money (GH¢700.00)we forcibly took fromthe victim. Allegations are made by the Appellant’s lawyer that the Guilty pleas by the Appellant were made under duress, having been advised by a police officer to plead as such after being keptin custodyfor4days. None ofsuch facts arepresent onthe RecordofAppeal. It will be improper for this Court to give consideration to such matters as an appellate court. At this stage, after conviction and sentencing of an accused person not represented by counsel, if after that fact, it is disclosed to a lawyer that such circumstances led the Appellant to make that plea of guilty, that may give rise to a contest in a human rights application, and should that be successful, then lead to the conviction and sentence being rendered unsafe and liable to face any of the appropriate prerogativeordersavailable asaconsequence. Under Order 67 rule 1 of the High Court (Civil Procedure) Rules, 2004, C. I. 47, a person with a complaint of a fundamental human right having been infringed may seek 6 redress under Article 33(1) of the 1992 Constitution, and if successful, under rule 8 of the Order, the High Court, could grant such necessary orders to provide redress for the right infringed. The allegations made by the Appellant are in the nature of the abuse of rights provided under Article 14(3) and (4), and Article 15(1) and(2) of the 1992Constitution it is when Article 33(1) is invoked that the procedure provided in Order 67 will avail the Appellant to contest those allegations. It is thus determined that without the allegations being apparent on the face of the Record of Appeal, they cannot be raised for determination in this appeal as having tainted the plea of Guilty made by theAppellant at trial. The parameters of the appellate jurisdiction of the High Court are fixed by statute. When that jurisdiction is invoked, it gives no license to the court to go on an unbridled sojourn to pick up every complaint about the trial and vet. It has to act within the restrictive boundaries of its jurisdiction. This court agrees and relies on the statement made by Obiri, J (as he then was) in the case of Unilever Ghana Ltd. v. The Commissioner-General, Ghana Revenue Authority – Suit No. CM/Tax/0450/2021 – Judgment dated 20th July, 2023, where, relying on decisions such as Nye v. Nye [1967] GLR 76 CA (Full Bench), Karletse-Panin v. Nuro [1979] GLR 194 CA, and Frimpong v. Poku [1963]2GLR1,he statedthus: 7 Itis pertinent to state, that appeals are not conferredby the common lawof inferred from judicial decisions. Appeals are statutorily conferred. Therefore, in the absence of any statutory jurisdiction, no appeal can exist legally beforean Appellate Court. Ground 2isthereforedismissed as untenable. It then remains to consider Ground 1 which contests the sentence as being harsh. S. 149 of Act 29 of 1960 has been qualified by the Criminal Code (Amendment) Act 2003, Act 646whichprovides as follows: Whoevercommits robberyis guilty of anoffence andshall be liable upon conviction on trial summarily or on 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 of offensive missile, the offender shall upon conviction be liable to imprisonment for a term of not less than fifteen (15) years. 8 The offence of Robbery is a first-degree felony, though triable either summarily or by indictment as provided by Act 646. It does not have a maximum sentence, but a minimum sentence of15years. The Appellant was sentenced to 10 years under Count 1 - Robbery, contrary to S. 149 of the Criminal and other Offences Act, 1960, Act 29. No reason was given by the trial judge for the sentence of 10 years which is lesser than what was statutorily fixed as a minimum for the offence. It can only be justified if the offence was committed without an offensive weapon. The facts speak of the use of a pair of scissors in the commission of the offence. This confirms from the facts the ingredients for the offence of robbery as provided in S. 150(a) of Act 29 of 1960 – the accused stealing, using a threat or criminal assault or harm, doing so with the intent to prevent or overcome resistance of the other person to the stealing, and in this case, such threat effected with the use of a weapon. The Supreme Court in the case of Kwaku Frimpong alias Iboman v. Republic [2012] 1 SCGLR 297 relied on the oft quoted statement appearing in the case of Behome v. Republic[1979] GLR112to wit: One is only guilty of robbery if in stealing a thing he used any force or caused any harm or used any threat of criminal assault with the intent 9 thereby to prevent or overcome the resistance of his victims to the stealing ofthe thing. The charges were read and interpreted to the Appellant, and he admitted them. A pair of scissors was pointed by him at the chest of the Complainant and with a free hand, he intruded the pocket of the complainant and took out money. One needs not conjecture what the complainant felt at that moment, if not terror that immobilized him from resisting theAppellant and hisaccomplice. The sentence of 10 years, as addressed above, should rather have been the minimum provided by Act 646, which is 15 years, the barest minimum. To describe that as harsh could only be based on a misreading of the section. This court cannot go lower, but is bound to correct theerrorinsentence by thetrial judge. This ground ofappealalso fails. Lastly, reference is made of S. 31 of the Courts Act, 1993, Act 459 which provides as follows: The Court shall dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred or that the point raised in the appeal consists of a technicality or procedural error or a defect in the 10 charge or indictment but that there is evidence to support the offence of which the accused could have been convicted upon that charge or indictment. Out of the entire Record, no miscarriage of justice is apparent. Neither is there a technicality, or procedural error, or defect affecting the charges. Nothing permits this Courttodisturbthe conviction reached uponthe plea oftheAppellant. The onlyerroris with the sentence of 10 years, which on the basis of the facts and upon application of Act 646 should have been 15 years as a minimum, not 10 years. The sentence is revised accordingly from10 years to 15years. Subject to that, the entire appeal fails, and same is accordinglydismissed. (SGD) NATHANP.YARNEY JUSTICEOFTHE HIGH COURT 11