Otis v S (CR/0043/2025) [2025] GHAHC 129 (13 January 2025)

IN THE HIGH COURT OF JUSTICE HELD IN ACCRA ON MONDAY THE 13TH DAY OF JANUARY 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/0043/2025 SOLOMON OTIS CONVICT/APPELLANT VRS THE REPUBLIC RESPONDENT/RESPONDENT JUDGMENT The Appellant (A2) herein, one another James Ugochukwu Nwobi (A1) and one Awudu Mamudu @ Focus at large were arraigned before the Adentan Circuit Court ‘2’ wherein the A1 was charged with the offences of: Count one: causing unlawful damage contrary to Section 172 of the Criminal Offences Act 1960, Act 29, Count two: stealing contrary to Section 124(1) of Act 29/60, Count three: unlawful entry contrary to Section 152 of Act 29/60 1 A2 the appellant herein was charged with: Count four: Conspiracy to commit crime namely dishonestly receiving property contrary to sections 23(1) and 146 of Act 29/60 Count five: Dishonestly receiving property contrary to Section 146 of Act 29/60. On the 8th of October 2024, the appellant pleaded guilty with explanation to counts four and five after the charges were read and explained to him in the English Language while the A1 also pleaded guilty with explanation to counts 1, 2, and 3 after the charges were read and explained in the English language to him. The court upon hearing the explanation of both the appellant and the A1 held that “the explanations given by both A1 and A2 confirms their respective pleas of guilt on the charges. A1 is therefore convicted on his own plea of guilt on counts 1, 2 and 3 as charged. A2 is convicted on his plea of guilt on counts 4 and 5 as charged.” Upon hearing the plea in mitigation of the Appellant and A2, the court sentenced them as follows: Count 1: Al is sentenced to serve 3 years In Hard Labour Count 2: A1 is sentenced to serve 12 years In Hard Labour Count 3: Al is sentenced to serve 2 years In Hard Labour Count 4: A2 is sentenced to serve 4 years In Hard Labour Count 5: A2 is sentenced to serve 5 years In Hard Labour 2 The sentences for A1 and A2 were to run concurrently. The court made a restitution order to wit “the items retrieved, 3 laptops and 23 tables shall be released to Frederick Sackey (complainant) forthwith.” It is against this judgment that the appellant (A2) filed the instant appeal on the 18th of October 2024. The grounds of appeal in the instant appeal are as follows: i. That the trial Judge erred when she accepted the guilty plea simpliciter to the charge by the accused without explaining to him the nature of the charge and procedure which shall follow the acceptance of a guilty plea, as mandated by Section 199(1) and (2) of Act 30/60. ii. That the failure by the trial judge to explain the nature of the charge to the accused as mandated by Statute, renders the conviction and sentences passed void and thus a nullity. The appellant’s relief sought in this appeal is that the conviction and sentence imposed on the appellant be set aside. FACTS OF THE CASE The case of the prosecution was that the Complainant in this case is Frederick Sackey, a businessman, while James Ugochukwu Nwobi (Al) lives at Plus 1 lodge, Circle. Solomon Otis (A2) and Awudu Mamudu @ Focus are business partners trading at Circle. On 26th September, 2024, the complainant visited his shop at Okponglo where he deals in laptops, mobile phones, tablets and their accessories and observed that his 3 storeroom upstairs had been burgled after the thieves cut open and damaged the burglar proof bars on the window and stole ninety-one (91) assorted laptops, and fifty- one (51) tablets, all totalling GH¢366,200.00 and escaped with them through the window. On 29th September 2024, one of the stolen tablets, with serial number GPSZ2024070418582 was spotted in a showcase on display at Kwame Nkrumah Interchange. On 30th September 2024, the owner of the said showcase, Stephen Akwaboah, a witness in this case was arrested and the said tablet was retrieved. Stephen Akwaboah produced one Charles Chubuike Eze, also a phone dealer who was arrested and he also produced A2 as the one who sold the said tablet and another to him and A2 was also arrested. A2 claimed he bought only the two tablets from someone whose whereabouts he does not know. On 3rd October 2024, Police gathered intel to the effect that two laptops that fit the description of the complainant's property has surfaced at Tip-Toe lane, Circle. A team was dispatched there and one Chukuemeka Itiri, also a witness in this case was arrested with two laptops identified as that of the complainant. The said witness disclosed to Police that Al gave the laptops to him to sell and he led Police to Plus 1 lodge where Al was arrested. A search in the room of Al led to the retrieval of two tablets and a laptop, all identified as the complainant's property. Investigations revealed that, on the dawn of 26th September, 2024, Al broke into the storeroom of the complainant at Okponglo after he used a plier to cause damage to the metal window bars and gained access into the said room where he made away with the said ninety-one laptops and fifty-one tables. At about 6am, A1 reached out to A2 and A3 the dishonestly receivers and informed them of his booty which he was looking forward to dispose through them. On the same 26th September, 2024, A2 and A3 met with A1 in his room at Plus 1 lodge where twenty one “oteeto” tablets and twenty two laptops were released to them. A2 made an initial deposit of GHC1,000.00 to A1 and 4 they left with the booty. After A1 confessed to the crimes, A2 admitted selling nineteen of the said tablets to Victoria Osei Praku, also a witness in this case each after convincing her that the tablets were brought in by his brother from Dubai and the nineteen tablets were retrieved. A3 got wind of the developments and has gone into hiding. On 4th October, 2024, A1 led police to the complainant’s shop and identified same as where he stole the laptops and tablets. Twenty-two tablets and three laptops have been retrieved so far and is in the custody of Police. RESOLUTION OF THE GROUNDS OF APPEAL In submitting, counsel for the appellant in her written submissions filed on the 23rd of December 2024 stated firstly that per Section 199 (1) of Act 30/60, the trial judge was mandated before accepting the guilty plea to explain to the accused the nature of the charge and procedure which follows the acceptance of a plea of guilty. She added that the explanation of the accused to the plea was inconsistent with the plea of guilty and that the trial court ought to have entered a plea of not guilty and proceed to trial. She then further submitted that the trial judge ought to have recorded the facts upon which the prosecution relies to justify the conviction and that the facts must be recorded before conviction. She then proceeded to list the reasons why it is imperative that the facts of the case be recorded before the conviction. Traditionally an appeal is by way of hearing the case. 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 5 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 The procedure in criminal trials as provided for in the Criminal Offences Procedure Act 1960, (Act 30) outlines two modes of trials in criminal matters and that being summary trials and trials on indictments. Therefore, Part three (3) of Act 30 outlines the procedural rules on summary trials while Part four (4) outlines the rules on procedure in trials on indictment. The Section 199 of Act 30 which counsel for the appellant relies on forcefully in making her argument is for procedure in indictable offences. In the case of summary trials, when an accused person is arraigned before any court on criminal charges, the procedure for the trial has been outlined in Section 171 (1), (2), (3) and (4) of the Criminal and other Offences Procedure Act 1960/Act 30. It provides that i. “(1) Where the accused appears personally or by counsel as provided under section 79, the substance of the charge contained in the charge sheet or complaint shall be stated and explained to the accused or if the accused is not personally present to the counsel of the accused, and the accused or counsel of the accused shall be asked to plead guilty or not guilty. ii. (2) In stating the substance of the charge, the Court shall state particular 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, and the section of the enactment creating the offence. iii. (3) A plea of guilty 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), the letter shall be placed on the record and the Court shall convict the accused and pass sentence or make an order against the accused unless there appears to it sufficient cause to the contrary. 6 iv. (4) Where the plea is one of not guilty the Court shall proceed to hear the case.” Per the above stated provisions, the court is mandated to record the plea, convict and proceed to pass sentence on the accused person. However the court can only do so when “the substance of the charge contained in the charge sheet or complaint” has been stated and explained to the accused person. This is to ensure that an accused person appreciates the nature of the charge. In the record of proceedings, the trial judge before proceeding to take the plea of the accused persons enquired the language for the mode of the trial and further enquired from them whether they have copies of the charge sheet and facts of the case attached to which they answered positively. The record notes that the “charges and facts are read and explained to A1 and A2 in English for the offences per the charge sheet and facts attached thereto. Find a copy of the said charge sheet and facts on the court’s docket.” In a criminal trial the court is to ensure that the accused person understands and knows of the nature of his or her rights, the nature of the offence to which a plea was taken, that the facts support the charge preferred against the accused and that the plea is taken in the language understood by the accused before it convicts and sentence the accused. See page 242 of the Second Edition of His Lordship Dennis Dominic Adjei’s book on Criminal Procedure and Practice in Ghana. Therefore, from the face of the record, there must not be present any evidence to suggest that the court or prosecution coerced or threatened the accused person to plead guilty to the charge. 7 In our courts, this is said to have been complied with when the charge is read and explained to the accused person in a language that the accused understands. In instances where the accused person is not literate in the English Language, the charge must be explained to the accused person in a language the accused person understands. The record of appeal as noted above is clear that the trial judge complied with the mandated Statutes in having the charges read and explained in the English Language to the appellant to which he proceeded to plead to. Another issue raised in this appeal is the fact that the explanation of the accused to the plea was inconsistent with the plea of guilty and that the court should have entered a plea of not guilty and proceed to trial. Our procedure Act, 1960 Act 30 provides for two types of pleas which are either guilty or not guilty. Under our law, there is nothing like “guilty with explanation” however on so many occasions, many an accused persons when asked to plead to the charge plead “guilty with explanation”. This has been interpreted in A N E Amissah’s book Criminal Procedure in Ghana 1981 ed) page 109 that “often an accused pleads that he is guilty with explanation. This may actually mean a plea of not guilty when the explanation comes out or it may only mean that the accused is in fact guilty but has something to say towards the mitigation of punishment” S. A Brobbey’s Practice and Procedure in the Trial Courts and Tribunals of Ghana 2nd Edition page 77 stated that: “Whenever an accused person adds any words to his plea of guilty, it becomes imperative that the trial magistrate takes pains to record in the proceedings whatever he wishes to say by way of excuse, reservation, explanation, etc. This is because that record will reveal whether the accused 8 is genuinely guilty but pleads in mitigation of punishment or would want to inform the court that he is not guilty but for some legally unacceptable reason he pleads that he is guilty. In the latter event, a plea of not guilty should be entered for him so that the case will be tried. In the former case, there is no reason why he should not be convicted "on his own plea" if what he adds confirms his guilt or makes no change to the fact that he is guilty. If what he adds amounts to mitigation of sentence, he is still guilty and can be convicted on his own plea, but those points may be duly considered when imposing the sentence.” In applying the above to the record of appeal, the explanation given by the appellant was to wit “A1 called me on Thursday morning telling me that he had some tablets to sell. He showed me 21 pieces of tablets for 2,000 Ghana Cedis. I sold 2 to one Charles and 16 to one woman at Circle” As stated supra, the Appellant herein had been charged with the offence of dishonestly receiving and conspiracy to dishonestly receive. Section 146 of Act 29/60 provides that: “A person who dishonestly receives property which that person knows has been obtained or appropriated by a criminal offence punishable under this Chapter, commits a criminal offence and is liable to the same punishment as if that person had committed that criminal offence. In the case of Gariba v The State [1963] 2 GLR 54 it was held that “the conviction for stealing could not be sustained but to convict the appellant of dishonestly receiving under the Criminal Code, 1960, s. 147 (1) it must be shown that (1) the goods alleged to have been stolen were in fact stolen, and (2) that the appellant knew they were stolen and (3) nevertheless, assisted in the disposal of the goods otherwise than with a purpose to restore them to the owners. Since it was proved by the prosecution that the appellant knew that the articles were stolen, and since the facts of this case were clearly covered by the provision in section 147 (1) of the Criminal Code 9 relating to assisting in the disposal of stolen property otherwise than with a purpose to restore it to its owner, a conviction for dishonestly receiving was proper. Lee v. Taylor and Gill (1912) 77 J.P. 66 at p. 69 applied.” From the record the A1 who had also pleaded guilty with explanation stated in his explanation that “They called me from Nigeria saying my mother was sick, I did not know what to do to get money to send them. I resorted to stealing the items. I am sorry for what I did. I will never do same again” Followed by this explanation given by the A1, the A2/appellant herein proceeded to give his explanation noted above. Prior to this explanation, the facts of the case had been read and explained in the English Language to the A1 and A2. As such the Appellant was aware from the facts of the case where it was indicated that he met the A1 in his room at Plus 1 lodge where 21 tablets and 22 laptops were released to him after paying GHC1,000 and where he was said to have informed one Victoria Osei Praku that the tablets were brought in by his brother from Dubai. His explanation therefore with these facts and the explanation of the A1 is therefore consistent with guilt of the offence of dishonestly receiving and the trial judge was therefore right in finding that the explanation is consistent with guilt and proceeded to convict the appellant herein. I also notice from the submission of counsel for the appellant a contention that the facts of the case were not recorded as per procedure. The record indicates that the facts of the case and the charge sheet were attached and referred to copies on the court’s docket which forms part of the record. 10 On the issue of sentencing, the offence of dishonestly receiving, a person convicted is liable to same punishment as if that person had committed the criminal offence. In this case therefore, the appellant was liable to the punishment for the offence of stealing. Per the Section 124 (1) of the Criminal offences Act and the Section 296(5) of the Criminal Procedure Act 1960/30, a person convicted of the offence of stealing is liable to a term of imprisonment not exceeding twenty-five years. The appellant was sentenced to four years IHL and five years IHL, sentences to run concurrently. The trial judge in sentencing the appellant and the A1 considered the quantum of the victim’s loss and the need to issue a deterrent sentence owning to the prevalence of theft cases plaguing Ghanaian society which has increased the sense of insecurity of the society. Counsel has contended that the trial judge ought to have considered the fact that the appellant was a first time offender, the fact that he did not waste the time of the court, the fact that he is in his youthful years and also the fact the items stolen were retrieved. I have noted the submissions of counsel for the appellant with regards to sentencing. The trial judge had the discretion to impose a sentence not exceeding twenty-five years. The trial court having imposed a sentence of four and five years IHL was clearly within the confines of the law. The question of sentence is a matter of discretion with all courts. Thus, the decision of the court as to the length of sentence to impose from within the statutory limits is an exercise of the court’s discretion. Sentencing is an exercise of the discretionary power by a Judge and as long as the Judge has kept within the confines of what the law prescribes and has also considered the 11 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. For it is the generally the rule that an appellate court should be opposed to interfering with the exercise of discretion by a trial court in so far as the Judge has not misdirected himself by taking into consideration irrelevant or unproved matters or omitting to consider relevant matters. Anin Yeboah JSC (as the then was) in the civil case of PRINCE WILLIAM TAGOE v ALBERT ACQUAH; Civil Appeal No. J4/24/2008, dated 11th March 2009 cited the case of BLUNT v BLUNT [1943] 1 A.C. 517 which held as follows: “This court as an appellate court can only intervene with the exercise of the discretion if it could be shown that the discretion was exercised on wrong or inadequate material placed before the court which exercised the discretion or if it could also be demonstrated that the court gave no weight to the relevant matters and ignored relevant material in arriving at its decision. If the lower court’s decision was also based on a misunderstanding of the law or on inferences that particular facts existed or did not exist when in fact evidence shows to be wrong, this court can interfere.” As noted supra, the trial judge had indicated that it was imposing a deterrent sentence against the accused persons. In the case of Kwashie vrs the Republic (1971) GLR 488 CA which held that where an offence is of a grave nature, the sentence must not only be punitive, but it must also be deterrent in order to make the disapproval of society of the offence. In the case of Adu Boahen vrs the Republic [1972] GLR 70 Azu Crabbe JSC stated that: 12 “where the court finds an offence to be very grave it must not only impose a punitive sentence but also a deterrent or exemplary one so as to indicate the disapproval of society of that offence. Once the court decides to impose a deterrent sentence the good record of the accused is irrelevant” As noted by Dotse Jsc in the case of Frimpong@ Iboman v Republic [2012] 1 SCGLR 297 “in reality, it is our belief that those to be deterred are the members of the society who know about the severity of sentences imposed for this or that crime. Under these circumstances, assuming persons with criminal propensities will think properly, then they might be deterred from any criminal conduct and realise that it does not pay to engage in criminal activities to wit robbery, rape etc as the case might be. It might also be necessary sometimes to protect society by keeping such persons away from society for a long time. The primary duty of any government is to ensure that citizens go about their duties in peace, tranquility and in safety” It is in the same outlook that I believe that the sentence imposed on the appellant herein is to deter businessmen who would receive stolen property to enrich themselves while encouraging the collapse of the business of others. Considering the quantity of the items dishonestly received and a consideration of the entire circumstances of the case particularly the facts supporting the case, and I am not inclined to disturb the sentence. The appeal fails and same is dismissed. PARTIES: APPELLANT PRESENT COUNSEL: 13 ELEANOR MAWULI KPOTSOAFE FOR THE APPELLANT PRESENT NATALIE KORKOR HAMMOND FOR THE REPUBLIC/RESPONDENT ABSENT (SGD) MARY M.E YANZUH J. HIGH COURT JUDGE 14