S v Aboagye and Others (CR/0301/2024) [2025] GHAHC 130 (27 January 2025)

IN THE HIGH COURT OF JUSTICE HELD IN ACCRA ON MONDAY THE 27TH DAY OF JANUARY 2025 BEFORE HER LADYSHIP JUSTICE MARY M.E YANZUH JUSTICE OF THE SUPERIOR COURT OF JUDICATURE SUIT NO: CR/0301/2024 THE REPUBLIC RESPONDENT VRS 1. ABOAGYE BENJAMIN @ RAPTURE 2. BEN@ LARGE 3. AMOS TETTEH A3/APPELLANT JUDGMENT The Appellant/A3 herein, Aboagye Benjamin A1 and Ben who is at large were arraigned before the Adentan Circuit Court and charged with the following offences: Count 1: A1 and A2 at large were charged with the offence of conspiracy to commit the offence of robbery contrary to Sections 23(1) and 149 of the Criminal Offences Act 1960 (Act 29) 1 Count 2: A1 and A2 were charged with the offence of robbery contrary to Section 149 of the Criminal Offences Act 1960 (Act 29) Count 3: A3 the appellant herein was charged with the offence of abetment of robbery contrary to Sections 20 and 149 of the Criminal Offences Act 1960 Act 29. The accused persons pleaded not guilty to the offences after same was read and explained to them in the Twi language. After a full trial, the accused persons were on the 24th of January 2024 found guilty, convicted and sentenced as follows: A1: Twenty (20) years IHL on count one the offence of conspiracy to commit the offence of robbery and count two the offence of robbery, thirty five (35) years IHL. The sentences were to run concurrently. A3 the appellant herein: Ten (10) years IHL on the offence of abetment to commit robbery. It is against this judgment that the appellant filed the instant appeal on the 15th of May 2024 pursuant to leave granted by the High Court on the 14th of May 2024 praying for the conviction and sentence of the A3/Appellant to be set aside. GROUNDS OF APPEAL The grounds of appeal filed are that: a. The judgment is against the weight of evidence. b. That the sentence is harsh and excessive 2 FACTS OF THE CASE According to the prosecution the Complainant in this case is a banker and lives at Pantang P&T whilst accused persons, Aboagye Benjamin is a musician resident at Firestone, Ben is at large, and Amos Tetteh is a driver resident at Pantang Hospital. The case of the prosecution is that on the 04/11/2021, at about 1:30am two armed men went to Pantang P&T and attacked the complainant with a pistol and made away with one 65" Samsung television valued at GH¢ 24,000.00, an HP Desktop computer valued GH¢10,800.00, two PlayStation '4' valued GH¢ 6,000.00 and cash $22,000.00 and GH 6,000.00 the property of one Prince Oduro. The case of the prosecution continued that the complainant called for police assistance and when the Adentan Divisional Patrol Team were on their way to the scene, they met A3 on board his Toyota Vitz with registration number GE 130-20 with the booty on board. He was arrested and the complainant identified the items as those stolen from his room. A3 was interrogated and he mentioned Al as one of the people who called him to convey the booty to Madina. During interrogation, Al kept calling A3 for the items. A team of policemen were sent to Madina with A3 and he identified Al as the one who was waiting to collect the booty and he was arrested. After investigation, they were charged with the offences and arraigned before Court. The court gave orders for the filing of written submissions and on the 5th of December 2024, Counsel for the appellant filed his written submissions and on the 19th of December 2024, the learned State Attorney for the Republic/Respondent also filed his written submissions. 3 DETERMINATION OF THE GROUNDS OF APPEAL The first ground of appeal is that the judgment is against the weight of evidence. 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.” This sometimes appears in the form "the verdict is against the weight of evidence." But as has been pointed out that formulation of the ground of appeal is incorrect and unacceptable in criminal appeals." To consider this ground of appeal filed, I would substitute the correct and appropriate formulation for ground (a) which 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 4 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. Dzamefe JA in the case of Patrick Mordo v the Republic [2019] 140 GMJ at page 243 referring to the case of Tuakwa v Bosom [2001-2002] SC GLR 61 stated that at the hearing of an appeal, an appellate court is under an obligation to analyze the entire record of appeal, take into account the testimonies and all the documentary evidence adduced at the trial before arriving at its decision, so as to satisfy itself in a civil trial that on a balance of probabilities, the conclusions of the trial judge are reasonable or amply supported by the evidence and in criminal cases that the decision of the court is reasonably supported by the evidence on record beyond doubt. He opined further that the appellate court is entirely at liberty to review the evidence on record and find out whether the evidence supported the findings made by the trial court. This is because an appeal is said to be a rehearing. 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. As noted supra, the appellant herein was charged with the offence of abetment of robbery. It is provided in Section 149 of Act 29/60 that: 5 “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 Section 20(1) of Act 29 provides the law on abetment of crime. It states that: “(1) A person who, directly or indirectly, instigates, commands, counsels, procures, solicits, or in any other manner purposely aids, facilities, encourages, or promotes, whether by a personal act or presence or otherwise, and a person who does an act for the purposes of aiding, facilitating, encouraging, or promoting the commission of a criminal offence by any other person, whether known or unknown, certain, or uncertain, commits the criminal offence of abetting that criminal offence, and of abetting the other person in respect of that criminal offence.” In the case of Commissioner of Police vs. Sarpey and Anor (1961) GLR 756 at 758 it was held that: 6 “In order to convict a person for aiding and abetting, it is incumbent on the prosecution to prove that the accused did any one of the acts mentioned in subsection (1) of section 20. Under subsection (2) a person who abets a crime shall be guilty of the crime if the crime is actually committed (a) in pursuance of abetment, that is to say, before the commission and in the presence or absence of the abettor and (b) during the continuance of the abetment, that is to say, the abetment must be contemporaneous in place, time and circumstance with the commission of the offence. In our view, an act constituting an abetment in law must precede or it must be done at the very time when the offence is committed.” It was also held in the case of Effah and Another vs. the Republic (1999-2000) 2 GLR 722 @ 731 that “The act of the abettor must precede, or be contemporaneous with, the crime abetted and the abettor must know some essential facts constituting the crime…” The record of appeal is clear that the evidence of the prosecution in support of the charge of abetment against the appellant/A3 came from the PW2 and PW3. PW2 Cpl Edward Edem Agbemenya testified per his witness statement that on the day of the incident, he was on board a police patrol vehicle on their normal patrol duties, when they met one Prince Abed Oduro at Ritz Junction who informed them that armed robbers were in his house at Agbogba. He stated that they proceeded to the scene and met a driver A3 the appellant in a taxicab loaded with home appliances few meters away from the complainant’s house. They therefore arrested the appellant. The PW1, Precious Ama K. Oduro had earlier in the trial testified that at 1:30am on the day of the incident, A1 and A2 at large entered her house and robbed her at gun point of her desktop computer, television set, two play station video games and an HP 7 monitor as well as the sum of GHC6,000.00 and $22,000 USD. She added that after the A1 and A2 at large left, she saw them through her window parking the items stolen downstairs and after they left, she called her brother who was not home at the time and he in turn called the police. PW3 D/Inspector Benjamin Eshun of the Adentan Divisional CID testified per his witness statement that when the Appellant was arrested he mentioned A1 and one other as the people who engaged him to convey the goods to the buyer at Madina. He said that during interrogation, the A1 kept calling the A3 asking if he had delivered the goods. He therefore organized a team, moved with A3 to the spot where the A1 was ready to meet him to collect the items and he arrested the A1. PW3 tendered into evidence the investigative caution statement of the Appellant as Exhibit E. The appellant in Exhibit E dated the 4th of November 2021 told the Police that a month prior to the day of the incident, A1 saw him driving and A1 took his telephone number. He said that the A1 called him once after two weeks and he met him and transported some bags for the A1. He added that on the 4th of November at about 3am, he received a phone call from A1 to meet him at Pantang P&T. He said that he went there and met him with one other person who he does not know. He said that he saw the Play station and the other items beside them and he picked them to the car and as there was no space in the car, A1 said that he would meet him at Melcom Madina and it was on the way that he was arrested. On the same day, A1 gave a caution statement Exhibit D to the police and stated that the A3/Appellant is a driver and on the 4th of November 2021 at 3am, he was asleep 8 when A3 called him that he had received a call from Benard and Bismark that he should come for the goods. He said that he came to Zongo Junction and accompanied the driver A3 to the bush inside Pantang and met Ben and Bismark at the scene and they placed the goods which were Tv and two PlayStation into the taxi and he also took another car. He said that A3 kept on calling him, but he did not know what was wrong, so he came to Melcom Madina to meet him and he was arrested. A1 gave a charge statement to the police on the 5th of November 2021 and this time stated with regards to the A3/Appellant that he knew the A3 who is a driver and a friend and that on the 4th of November 2021 at about 2am, he was asleep when Ben called him that he needed a taxi to convey his goods for him. He said that he then called Amos Tetteh the appellant herein who is a driver, and he promised to come. He added that A3 came and picked the goods and since there was no space in the car, he walked back to Sakora and boarded a car to Madina. He said that he was not among those who robbed but he only called A3 for Ben. This was the entirety of the evidence of the prosecution against the appellant herein. The appellant was called to open his defence and this is what he told the court: “On 04/11/2021, around 3:00am, A1 phoned me. I was asleep. When I answered, Al informed me that he had visited his friend at Pantang and needed me to come and pick him home. I got the directions from A1. I got to where he directed me around Pantang P&T around 3:30 am. Upon my arrival, I saw A1 holding a flat screen TV, a flat screen computer monitor and a bag. I asked him whose items those were. Al said it belonged to a gentleman who was standing by him. I asked A1 where he was taking the items and he said he was taking them to Madina. They both loaded the car. Al asked his companion if he had money for the services I was rendering and his companion said no. A2 told Al that they should go to A2's house so he could give A1 money to 9 pay me my fare. Al got down from my car and told me to meet him at PnT Sakora Point 5 not far from where we were so that he would meet me there with the money for us to be on our way. I moved the car and was almost immediately intercepted by a police patrol team, I stopped for the police. The police came towards me and asked what I was carrying in my car. I turned on the light in the car. There was a man driving a private car moving with the police. He was called to identify the items I was carrying. The man confirmed that the items I was carrying were his from his home. I was then informed that the items were proceeds of a robbery incidence. I did not believe it. So they took me to the house where the robbery took place. When ‘you’(sic) got there I could tell that the items had been stolen from that house… I then told police that I will assist them to arrest Al so that he can answer as to how he come about the items he loaded into my car. Because I had delayed in getting to him, Al called me to ask me where I was. I cooked up a story to lure him. A1 made someone else call me with another phone number to know if I have been arrested. I gave the person the same cooked story. So A1 believed that I had not been arrested. I then took the police to where Al asked me to meet him. I led the police to arrest A1. That is all that happened.” The law mandates the court in determining the guilt or otherwise of an accused person to consider the defense an accused person proffer. In so doing, a three tier test is provided to guide a judge in considering the defense of the accused person. This test 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; 10 (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. Following this test, then if I should find that any explanation given by the Appellant at the trial is true or reasonably probable, then it cannot be said that the A3 abetted the A1 and A2 at large in the commission of the offence of robbery. As per the evidence on record, the prosecution states that the A3/Appellant was not a mere driver who was called to render his services on the day of the incident but someone who knew of the robbery attack and decided to facilitate the carting of the items robbed to a buyer. There is absolutely no evidence on record to back that assertion. In the call record tendered as exhibit F series, there is no evidence from the PW3 who tendered same as to the phone number of the A3 and the phone number of the A1 for the court to refer to make a finding as to some form of prior communication between the two that is the A1 and the A3. The only indication as to the phone numbers of the A3 and A1 is their phone numbers indicated on their respective statements given to the police that is exhibit E and D1 respectively. Per the phone number stated, Exhibit F series seems to be the call records of the Appellant herein. In the call records, exhibit F which duration is from the 1st of November 2021 to 10th March 2022, and the evidence of the PW3 at the trial, on the 3rd of November 2021, a day prior to the incident, A1 called A3 but A3 did not answer the phone. On the 4th of November 2021, at around 2:40am, 11 the A1 called A3 and spoke to him for about 136 seconds. The rest of the phone calls from the two can be placed within the evidence of the prosecution as to when the A3 was arrested and he placed calls to the A1. That being the case, can it be true or reasonable probable that the A3 was just rendering a service as a taxi driver as he has explained to the court? To the mind of the trial circuit judge in her judgment, the fact that the A3 did not charge any fare or fee for his service and did not collect any money for conveying the items especially at the time he was called from home, is enough evidence of his involvement in the robbery plan and his facilitation of same. In criminal trials, the law requires proof of both the actus reus that is the physical act and the requisite mens rea or knowledge. Lord Morris of Borth-y-Gest said in Sweet v Parsley [1970] A.C. 132 at 152 that: “It has frequently been affirmed and should unhesitatingly be recognized that it is a cardinal principle of our law that mens rea, an evil intent or a knowledge of the wrongfulness of the act is in all ordinary cases an essential ingredient of guilt of a criminal offence.” It is trite that in general, there is a duality about criminal culpability, ie., the mens (mind) must be rea (guilty) in respect of the commission of a prohibited conduct before criminal liability can be established. This finds expression in the Latin maxim actus non facit reum nisi mens sit rea, meaning, an act does not make a man a criminal or guilty unless the mind be guilty or unless there is a guilty mind In National Coal Board vs. Gamble (1959) 1 QB 11 the court held that: 12 “The offence of abetment requires proof of mens rea of the accused person. The position of the law has been that the offence of abetment of crime requires proof of mens rea. It means intention to aid as well as knowledge of the circumstances and the proof of the intent of the accused involves proof of a positive act of assistance voluntarily done.” Thus, it is not enough for the prosecution to prove that the A3 was carting the subject matter of the robbery, they must proceed to prove that the A3 was in fact aware that the items he was carting were the subject matter of the robbery and he willingly agreed to transport them to a destination to facilitate the robbery agenda. To prove knowledge of the A3/Appellant herein of the robbery plan and his decision to facilitate the plan, the acts and inactions of the A3 and some surrounding circumstances are the only pointers the court can resort to, to make the determination in that regard. And that is because what a person knows or believe in can only be proved by certain facts proved against him. For it is an oftquoted cliché that the devil himself, “knoweth not the mind of man.” One can only judge the state of a man’s mind by the actions of the man. As already noted, the only evidence on record provided by the prosecution for the court to ascertain knowledge of the A3 of the robbery plan is that he was called to render a service on the night of the incident. The finding made by the court that the A3 did not charge for his services and as such same can be considered as his knowledge of the robbery plan cannot be supported by the evidence on record. That is because from the evidence especially the evidence of the A3, he had enquired about payment for his services. He stated that “A1 asked his companion if he had money for the services I was rendering and his companion said no. A2 told A1 that they should go to A2’s house so he could give A1 money to pay me my fare” As such under cross examination, when asked if he charged for the services, he said he did not. That apart, the act of the A3 enquiring 13 about the items he was supposed to transport at that time of the night shows his diligence. He stated that when he saw the A1 and the A2 at large with the items, he enquired as to where the items were from. He said that, “A1 informed me that he had visited his friend at Pantang and needed me to come and pick him home. I got the directions from A1. I saw A1 holding a flat screen TV, a flat screen computer monitor and a bag. I asked him whose items those were. A1 said that it belonged to a gentlemen who was standing by him” To the mind of this court, if the A3 was a usual taxi driver who the A1 had contracted that day, his failure to charge for the services would have been unusual. However, the record shows that the A3 and A1 had struck an acquaintance prior to the day of the incident whereupon the A1 had called him prior to that day to convey some bags to a certain destination. The A1 therefore referred to the A3 as a driver and a friend. As such when A1 called him at that time to render a service, he complied and did so. In our daily lives and also in the daily lives of most Ghanaians, it is usual to find such acquaintances between persons and taxi drivers who can be called upon at any time and they would respond and come to render services. It is also usual to find that as a result of that relationship, payment for services is arranged by the parties and not in the same mode and manner as a usual taxi driver met on the streets. Also, his act of assisting the police and luring the A1 to be arrested by the police is enough evidence that he had no knowledge of the robbery plan. Our law places significant emphasis on doing substantial justice which involves a consideration of the totality of the evidence adduced at the trial before arriving at the conviction or acquittal of an accused person and on the totality of the evidence before the court therefore where an accused person is found to have been convicted by the trial court of evidence not up to the par or requisite degree of proof, then same ought to be 14 set aside. The result of the above is that the conviction and ultimately the sentence of the A3 therefore ought to be set aside and same is set aside as the prosecution failed to prove its case against him. The appeal against conviction for the above reasons succeeds. The conviction and sentence of the A3 by the trial circuit court dated the 24th of January 2024 is hereby set aside. The A3 is accordingly acquitted and discharged. (SGD) MARY M.E YANZUH J. HIGH COURT JUDGE PARTIES: APPELLANT PRESENT COUNSEL: OSUMAN MOHADEEN FOR THE APPELLANT/A3 PRESENT JESSIE TAGOE-KORLI STANDING IN FOR ISAAC WILBERFORCE MENSAH FOR THE REPUBLIC/RESPONDENT PRESENT 15 16