Inusah v The Republic (CC15/037/2024) [2024] GHAHC 548 (29 October 2024)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURTOF JUSTICE, COMMERCIAL DIVISION “B” (GENERAL JURISDICTION) HELD AT SUNYANI ON TUESDAY THE 29TH DAY OF OCTOBER 2024 BEFORE HER LADYSHIP JUSTICEJOYCE BOAHEN, HIGH COURTJUDGE SUITNO. CC15/037/2024 INUSAHISSAHAKA V THEREPUBLIC JUDGMENT ConvictAppellant present Counselforthe Republic Respondent absent EmmanuelKofiPehholding brief ofRomeoAsante Nimo for theConvictAppellant present INTRODUCTION TheAppellant was convicted and sentenced to twenty (20) years imprisonment In Hard Labor (IHL) for the offence of abetment of crime to writ; robbery contrary to section 20 1 (1) and 149 of the Criminal and Other Offences Act, 1960 (Act 29) on 17th May, 2022 by His Honor Samuel Djanie Kotey, Circuit Court Judge, as he then was, sitting at the Circuit Court, Dormaa Ahenkro. Being aggrieved of his conviction and sentence, the Appellant mountedthe present appealin this Court. PETITIONOF APPEAL The Appellant filed his petition of appeal on 10th July, 2024. His grounds of appeal are that; GROUNDS OF APPEAL a. The convictionis wronginlaw asthe facts donot supportthe charge. b. The sentence assuming without admitting the conviction is right is harsh and excessive. RELIEFS SOUGHT a. Toset aside and /orreverse theconviction. 2 b. Mitigation ofsentence. The circumstances of this case are exceptional. Before the appeal could be heard Counsel for the Appellant prayed the Court orally with leave of the Court for the Appellant to be admitted to bail pending appeal. The reason for Counsel’s prayer is that the Appellant has been diagnosed of liver disease. Counsel produced a medical report on the Appellant to that effect and prayed the Court in the circumstance to hear the appeal viva voce. The Republic was not opposed to Counsel for the Appellant’s prayer and the Court granted Counsel’s prayer because the Appellant appeared palpably unwell. APPLICATIONFORBAIL PENDING APPEAL Counsel for theAppellant prayed the Court for the matter to be tried expeditiously and for the Appellant to be admitted to bail pending appeal which has been filed before the Court. According to Counsel, the Appellant has been in prison custody for two years after he was sentenced to a twenty-year jail term for abetment of robbery. Counsel submitted that the Appellant is in a precarious situation as he has been diagnosed with a liver disease. He has a fixed place of abode within the Court’s jurisdiction and persons of independent and unquestionable character are ready to stand as his sureties. Counsel prayed the Court to admit the Appellant to bail on terms that he would be able to meet considering the circumstancesofhis health. 3 The Republic was not opposed to the application for bail upon seeing theAppellant and his medicalreport produced by his Counsel Section 96 (1) (a) and (b) of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30)provides that; (1) Subject to this section, a court may grant bail to a person who appears or is brought before it on aprocessor after beingarrested withoutwarrant, and who (a) is prepared at any time or at any stage of the proceedings or after conviction pending an appeal to give bail, and… (b) enters into a bond in the prescribed manner with or without sureties, conditioned for that person’s appearance before that court or any other court at the time and place mentioned in the bond. In the case of Fynn and Another vs The Republic [1971] GLR 433 the Court held among others that bail pending appeal could be granted if there are exceptional or unusualcircumstances. Upon perceiving the Appellant who appeared palpably unwell and upon reading the medical report of the Appellant produced by Counsel which indicates that the Appellant has “chronic liver disease” and upon hearing his Counsel and upon taking notice that the Republic is not opposed to the Appellant being admitted to bail, the Court admitted the Appellant to self-recognizance bail on 12th July, 2024 under unusual 4 and exceptional circumstances per the authorities cited above. The Appellant is to appearin Courtonall subsequent adjournmentsuntil theappeal is finally disposed of. SUBMISSIONOF COUNSEL FOR APPELLANTON THEAPPEAL MyLady a petition ofappealwas filed onbehalf oftheAppellant against the decision of the trial Circuit Court Dormaa Ahenkro presided over by His Honor Samuel Djanie Kotey. The Appellant was sentenced to 20 years in hard labour for abetment of crime contrary to section 20(1) and 149 of the Criminal Offences Act, 1960 (Act 29). The Appellant is of the opinion that the conviction is wrong in law as the facts do not support the charge and therefore prays that the conviction should be set aside. The Appellant prays that in the event his conviction is found to be right, the sentence is harshand excessive and theAppellant praysfor mitigationofsentence. GROUND(a) The convictionis wrong in lawas the facts donotsupportthe charge. Counsel submitted that the conviction of the Appellant was wrong in law which occasioned grave miscarriage of justice to the Appellant. According to Counsel, upon perusal of the facts, attached to the charge, it is clear that the Appellant was wrongly charged with abetment of robbery per section 20 (1) of Act 29. This is because the Appellant did not in any way directly or indirectly, aid A1 to commit robbery. With 5 reference to section 31 of the Courts Act, 1993 (Act 459) as amended by the Courts (Amendment)Act 2002 (Act 620), Counsel read, the facts and the charge and noted that it is evident that the decision of the trial Court was wrong in law. The said decision has occasioned gravemiscarriage ofjustice and ought tobe set aside. GROUND(b) The sentence assuming withoutadmitting that the conviction isright, is harsh and excessive Counsel submitted that the sentence of 20 years imposed on the Appellant is harsh and excessive considering the circumstances of the case. Counsel contends that robbery committed with offensive weapon attracts a minimum sentence of fifteen (15) years. Considering the fact that the Appellant is a first offender the Court should have taken that into consideration and granted him the minimum sentence. Counsel argued that theAppellant was 19 years old when the crime was committed so the trial Court should have considered that he has considerable productive years ahead of him for him to be given a minimum sentence. Counsel prayed the Court on the strength of his submission to set aside both the conviction and sentence of the Appellant handed down to the Appellant on 11th July, 2022 in the interest of justice. Counsel argued that the closest charge that could have been preferred against the Appellant is under section 22 of the Criminal Offences Act on “Duty to prevent a felony” for the Appellant’s failure to 6 prevent A1 from committing robbery by alerting the police when A1 told him that he wasgoing tocommit robbery. SUBMISSIONOF COUNSEL FOR THEREPUBLIC Counsel for the Republic submitted that the facts as presented by prosecution does not support the charge preferred against the Appellant for him to be convicted. According to Counsel, it appeared prosecution considered the event after A1 committed the crime but abetment goes into the commission of the offence and not after the offence has been committed. It was entirely wrong for the Appellant to be brought into this matter according to Counsel. The facts did not state that, theAppellant gaveA1 the weapon he used to commit the robbery. Neither did the facts state that the Appellant did anything to support the commission of the crime of robbery. The facts rather indicate that the Appellant refused to take part in the robbery when A1 informed him about it. Counsel prayed the Court to set aside the conviction and sentence of the Appellant because it waswrongin law. EVALUATIONOF THE FACTS, EVIDENCE ANDAPPLICATION OF THELAW The facts are that the Complainant lives in Awiekrom. A1, 24 years old is a Fulani Herdsman and lives at Nkrankwanta. A2 (the Appellant) is 19 years old, a Fulani herdsman and resides in Nkrankwanta. On 13th May, 2022, A1 wielding a locally 7 manufactured gun went to the house of A2 for them to go and rob commuters on Nkrankwanta Yawusukrom motor road but A2 refused to go. A1 embarked on the robbery alone and succeeded in robbing the Complainant who was returning from Nkrankwanta to Awiekrom on motor bike with his wife. Due to the poor nature of the road the Complainant was riding the motor bike slowly, A1 suddenly appeared, pointed a gun at the Complainant and succeeded in robbing the Complainant of One Thousand Ghana Cedis (Ghs 1,000.00), one Techno Top 5 value Six Hundred Ghana Cedis (Ghs 600.00), one Techno Keypad Prone value Ghs 100.00, a lady’s bag containing her ECOWAS identity card, NHIS card, voter identity card, seamstress’ uniform and Twenty Ghana Cedis (Ghs 20.00). A1 hid the gun in the bush and went toA2’s house to inform him that he was done with the robbery. A1 went and showed A2 where he had hidden the gun. A2 told A1 to go and that he will bring the gun to him the next day in the morning to avoid A1 from being arrested. A1 alleged that he gave A2 Fifty Ghana Cedis (Ghs 50.00) as his share of the booty of the robbery. A2 sent the gun to A1 in his house at Nkrankwanta on 14th May, 2022. The Complainant identified A1 to the police on15th May,2022 astheone who robbedhim andhis wife at gunpoint on13th May,2022. A1andA2 were arrested andafter investigations, theywere chargedwith theoffences. THELAW Section 149 of the Criminal Offences Act 1960 (Act 29) as amended by the Criminal Code(Amendment)Act, 2003(Act 646) statesthat; 8 Whoever commits robbery is guilty of an offence and shall be liable, upon conviction on trial summarily or on indictment, to imprisonment for a term of not less than ten years, and where the offence is committed by the use of offensive weapon or offensive missile, the offender shall uponconvictionbe liable toimprisonmentfor a termof notlessthan fifteenyears. Section20(1), (2)and (3)ofthe Criminal OffencesAct 1960(Act 29)statesas follows; (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 abettingthe other person inrespectof that criminal offence. (2) A person who abets a criminal offence shall, if the criminal offence is actually committed in pursuance of, or during the continuance of, the abetment, be deemed to have committed that criminaloffence. (3)A personwho abets acriminal offence is, ifthe criminal offenceis notactually committed, (a) liable toimprisonmentfor life wherethe criminaloffenceabetted was punishable by death; and 9 (b) in any other case the abettor is punishable in the same manner as if the criminal offence had been actuallycommitted in pursuance of the abetment. Section22ofthe Criminal OffencesAct, 1960(Act 29)provides that; 22.Duty to preventafelony Aperson who, knowing that aperson designs to commitor is committing a felony, fails to use all reasonable means to preventthe commissionor completing the felony commits a misdemeanour. Article 19(5) ofthe1992constitution statesthat; Aperson shall not be charged with or held to be guilty of a criminal offence which is founded on an actor omission that did notat the time ittook place constitute an offence. Sections 30 and 31 of the Courts Act 1993 (Act 459) as amended by the Courts AmendmentAct 2002,(Act 620)statesas follows; (30)Subject tothe provisionof this Sub-Part an appellate courtmay inacriminal case- a. on appeal fromaconvictionor acquittal- b. reverse the finding and sentence and acquit and discharge or convict the accused as the case may be or order him to be retried by a court of competent jurisdiction, or commithim for trial; or increase the sentence; or 10 c. with or without such reduction or increase and with or without altering the finding alter the natureof the sentence; or (31) Subject to subsection (2) of this section an appellate court on hearing any appeal before it in a criminal case shall allow the appeal if it considers that the verdict or conviction or acquittal ought to be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence or that the judgement in question ought to be set aside on the ground of a wrong decision of any question of law or fact or that on any ground there was a miscarriage of justice and inany other case shalldismissthe appeal. Inthecase ofthe Republic vsJacob K. Mensah[1959]GLR314@315,the Courtheld that; “The offence of aiding and abetting the commission of a crime is committed by a person who, knowing what the essential ingredients of a particular crime are; “directly or indirectly instigates, commands, counsels, procures, solicits or in any manner purposely aids another person inthe commissionof that crime.” In the case of Commissioner of Police vs Sarpey and Nyamekye [1961] GLR 756, Sarpey, a police constable, allowed a vehicle carrying stolen goods to pass him without checking the contents. He was charged with three others with conspiracy to steal; this charge was then withdrawn as against him and was charged instead with aiding and 11 abetting the other three. He was duly convicted. He appealed on the ground that the verdict wasunreasonable and could notbe supported bythe evidence. The court held that; An act constituting abetment of crime must precede it or must be done at the very time when the offence is committed. Abetment must be contemporaneous in the commission of the offence. Sarpey’s conduct although suspicious, didnot amounttoabetment. The court held atpage 758that; In order to convict a person of aiding and abetting it is incumbent on the prosecution to prove that the accuseddid any one of the acts mentioned insubsection (1)of section (20). From the proceedings of 17th May, 2022, the plea of the accused persons were taken in Twi language after the pleas of guilty and not guilty were explained to them in Twi language and they understood same. They both pleaded guilty to the charge. The court sentencedA1 for robbery for twenty five (25) years imprisonment andA2 to twenty (20) yearsimprisonment forabetment ofrobbery. Despite the fact that, A2 pleaded guilty to the charge, the facts do not support the chargeofabetment levelled against him. The charge sheetin respectofA2is as follows; 12 STATEMENTOF OFFENCE Abetment of crime, contrary to sections 20 (1) and 149 of the Criminal and Other OffencesAct, 1960(Act 29) PARTICULARSOF OFFENCE Inusah Issahaka 19 years, Herdsman; on 13th May, 2022 at Nkrankwanta in the Bono Region and within the jurisdiction of this Court, you did aid and abet Fuseini Musah to commit crime towit “Robbery”. TheAppellant was self-represented when he pleaded guilty to the crime of abetment. In the case of Commissioner of Police vs Sarpey cited supra, the Court held that to convict a person of aiding and abetting a crime, prosecution must prove that the accused did one of the acts mentioned in subsection (1) of subsection (20). For the avoidance of doubt some of the acts mentioned in subsection (1) of subsection 20 are; to directly or indirectly instigate, aid, facilitate, encourage promote the commission of a crime among others. The facts as stated supra indicates that; “A1 wielding a locally manufactured gun went to the house of A2 for them to go and rob commuters on Nkrankwanta Yawusukrom motor road but A2 refused to go. After the robbery committed by A1 alone, A1 hid the gun in the bush and went with A2 to show him where he had hidden the gun. A2 then toldA1 togohome for him tobring the guntohim the nextmorning toavoid him being 13 arrested whilst carrying the gun at night. A1 also alleged to have given Fifty Ghana Cedis (Ghs 50.00) toA2 as his share of the booty from the robbery. On 14th May, 2022A2 took the gun to A1 in his house at Nkrankwanta. Clearly from the facts, A1 committed the robbery alone. That is why he was charged with robbery alone. The facts also shows that A1 invited A2 to join him to commit robbery and A1 declined. It was at this point that A2 should have alerted the police about A1’s intention for A1 to be arrested which A2 did not. As Counsel for the Appellant argued, the failure of A2 to alert the police about the intention ofA1 to commit robbery could not sustain a charge under section 22 of Act 29 quoted supra. Unfortunately, A2 was not charged under that section. Granted that he was charged under that section the offence is a misdemeanour which would not exceed a maximum of three (3) years imprisonment. A2 being a first offender if he was charged under that section, he would not be given the maximum sentence of 3 years. Considering the fact that he had served two years of his prison term, it would constitute enoughpunishment tohimfor failing toalertthe police. It is instructive to add that for a personto aid orabet anotherperson to commit crime as held in the case of Commissioner of Police vs Sarpey cited supra the abetment must precede the offence or must be done at the very time when the offence is committed. Abetment mustbe contemporaneous in the commission of the offence. CounselforRespondent put it inanotherway that; 14 “My Lady I am tempted to believe that prosecution was looking at the event after A1 solely committed the offence of robbery. However,I must add that abetment goes into the commission of the offence and not after it has been committed. I believe it was entirely wrong to bring the Appellantinthe matter inthe firstplace.” CounselfortheAppellantputs it this way; “My Lady the facts as presented by prosecution is clear that the Appellant did not in any way either directly or indirectly aid the first accused person who actually went and committed the robbery act.” It is therefore clear from the facts that the Appellant did not aid or abet A1 in any way to commit robbery.A1 already had his gun and came to show it toA2 and invitedA2 to join him whichA2 declined. It is therefore wrong in law for theAppellant to be charged with abetment of robbery. Notwithstanding the above, the conduct of A2 after A1 committed the robbery is reproachable. The facts show that after A1 showed A2 where he had hidden the gun after committing the robbery,A2 on his own volition decided to keep the gun and return it to A1 the next morning to prevent A1 from being arrested. A2 accordingly delivered the gun toA1 on 14th May, 2022. The facts also alleged thatA1 gave A2 Ghs 50.00 as his share of the booty. Although the conduct of A2 after the robbery is reproachable, the said conduct does not constitute crime under our laws per article 19(5) ofthe1992Constitution cited supra. 15 CONCLUSION From the above factual and legal considerations and on the evidence as a whole, the Court holds the view that although the conduct of the Appellant before the robbery by refusing to alert the police and after the robbery by keeping the gun are suspicious and reproachable, no charge wasproved against him. The learned trial Judge therefore erred in law by convicting the Appellant of the offence of abetment of robbery when the Appellant played no role in the crime of robbery. The Court is therefore of a considered view that the conviction and sentence of the Appellant is unreasonable as it cannot be supported by the charge. The conviction and sentence of the Appellant constitutes substantial miscarriages of justice to theAppellant. I have perused the medical report of the Appellant dated 25th June, 2024 which “gives an impression of decompensated liver cirrhosis” which is explained as a serious stage of chronic liver disease where the liver canno longerperformall itsfunctions. For the foregoing reasons the appeal succeedson both grounds. Consequently,the convictionand sentence of the Appellantishereby setaside. The Appellantis hereby acquitted and discharged. 16 (SGD) JUSTICEJOYCE BOAHEN HIGHCOURTJUDGE 29TH OCTOBER2024 17