ADOGLO VRS. REPUBLIC (CR/0295/2024) [2024] GHAHC 447 (17 October 2024)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, CRIMINAL COURT 4, HELD IN ACCRA ON THURSDAY, THE 17TH DAY OF OCTOBER, 2024, BEFORE HER LADYSHIP JUSTICE COMFORT KWASIWOR TASIAME, JUSTICE OF THE HIGH COURT. CASE NO.: CR/0295/2024 ERIC ADOGLO - APPELLANT VRS. THE REPUBLIC - RESPONDENT APPELLANT – PRESENT COUNSEL: MAAME AFUA OSEI- GYAMERAH STANDING IN FOR JENNIFER AFRIYIE YENTUMI (ASA) FOR THE REPUBLIC- PRESENT. JUDGMENT This is an appeal from the Judgment of the Circuit Court, Amasaman-Accra, presided over by Her Honour Enid Marful-Sau (As she then was) convicting and sentencing the appellant to 18 years in hard labour on the offence of conspiracy to rob and Robbery. Brief facts of the case Page 1 of 10 The brief facts of the case are that, the complainants are Francis Okyere who lives at Awoshie and Fred Ofosu Kojo who is a trader and lives at Alajo. The complainants are dealers in used vehicles and their car parts at Tantra Hill Roundabout. The accused person Eric Adoglo is a driver’s mate and lives at Dome. On 20th August, 2020, the accused person and his accomplice Kofi, now at large, went to Francis Okyere’s garage armed with pistols and pretended to buy an unregistered Honda Accord model worth GH¢170,000.00. They inspected the vehicle, showed interest and pleaded for a price reduction. The robbers lied to Francis to call their father to inform him about the car. The complainant accepted their idea and suspect Kofi purportedly called his father on phone who said they should bring the vehicle to his place at Dome CFC Estate. Upon this deceit, Francis invited Ofosu Kojo to assist him to send the vehicle as requested. Ofosu Kojo took over the steering wheel, accused person, Eric Adoglo sat in front seat, Francis and suspect Kofi sat on the back seat. When they got to CFC Estate close to DVLA, accused person Eric pulled a pistol on Kojo the driver while suspect Kofi also pulled a pistol at Francis. Accused and his accomplice collected phones from the complainants and took hostage of them. Kojo was forced to join Francis at the back seat under guard and suspect Kofi took over the steering wheel. Suspect driver stopped the car at the Institute of Caregiver Vocational School at CFC Estate, dropped the complainants and sped off towards Tantra Hills roundabout. A taxi driver by name Rockson saw the speed used by the robbers and suspected foul play. Few minutes later, complainants came shouting for help and the witness used his taxi cab to chase the robbers up to Taifa direction. While chasing them, the accused person was firing shots at the witness car. However, witness pursued them up to Taifa Kwabenya Highway where the car broke down in the middle of the road. The accused person and his accomplice got out of the car and started running and they were chased by people around up to one Samuel Badu’s house at Taifa. Kwabenya police patrol team were informed about the incident and when they got to the scene, the accused Eric was arrested in the toilet room of Samuel Badu’s house. The two stolen phones were recovered from the toilet bin. Accused person admitted having conspired with his Page 2 of 10 accomplice to rob the complainant but denied having possessed pistols in their possession. The accomplice, Kofi is at large and efforts are being made to apprehend him. The Appellant filed six grounds of appeal. The grounds can be reduced to one and that is mitigation of sentence. And the relief sought is reduction of sentence. Learned Jurists are of the view that, appeal is by way of Re-hearing. ln the case of KINGSLEY AMANKWAH (a.k.a. SPIDER) VS. THE REPUBLIC [2021] DLSC 10793 at pages 14-16 per Dotse, JSC held amongst others that: In considering an appeal as one of rehearing, the appellate court must undertake a holistic evaluation of the entire record of appeal. This evaluation must commence with consideration of the charge sheet with which the appellant was charged and prosecuted at the trial court. This must involve an evaluation of the facts of the case relative to the charges preferred against the appellant. Also, assessment of the entire trial to make sure that all the witnesses called by the prosecution led evidence according to the tenets of the Evidence Act, 1975 NRCD 323. Finally, the burden on an Appellate Court is to go through the entire Record of Appeal and ensure that in terms of substantive law and procedural rules, the judgement appealed against can be supported having regard to the Record of Appeal and that there is no substantial miscarriage of justice that results from the trial court. Please see also the case of: Alex Onumah Coleman and Another Vrs Newmont Ghana Gold and Others (J4/67/2019) [2021] Unreported SC (10 March, 2021) where it was held that appeal is by way of rehearing and where there is an appeal against the entire judgement, the Appellate Court is to evaluate the record and conclude on a mind of its own. The appellant is praying for mitigation of sentence and not the entire judgement. I will however go through the whole trial to determine whether there was any miscarriage of justice since the appellant was not represented by counsel and could not do any submission by himself. Page 3 of 10 THE ONUS OF PROOF IN CRIMINAL CASES Generally, the burden of proof in criminal cases is on the prosecution. The Supreme Court in a unanimous decision in the case of Abdulai Fuseini v. The Republic, reported in [2020] Crim. LR reiterated and affirmed the basic philosophical principles underpinning criminal prosecution in our courts as follows: - “In criminal trials, the burden of proof against an accused person is on the prosecution. The standard of proof is proof beyond reasonable doubts. Proof beyond reasonable doubts actually means “proof of the essential ingredients of the offence charged and not mathematical proof.” Emphasis supplied. Section 11(2) of the Evidence Act, 1975 NRCD 323 provides as follows: - “In a criminal action, the burden of producing evidence when it is on the prosecution as to any fact which is essential to guilt required the prosecution to produce sufficient evidence so that on all the evidence, a reasonable mind could find the existence of a fact beyond reasonable doubt.” Appellant per the charge sheet was charged with Conspiracy to rob and robbery contrary to sections 23(1) and 149(1) of the Criminal and other Offences Act, 1960 (Act 29). Section 23 (1) of Act 29 provides: Where two or more persons agree to act together with a common purpose for or in committing or abetting a criminal offense, whether with or without any previous concert or deliberation, each of them commits a conspiracy to commit or abet the criminal offense. In the case of FAISAL MOHAMMED AKILU v THE REPUBLIC (SC) (Unreported) CRIMINAL APPEAL NO. J3/8/2013 dated 5th July 2017, the Supreme Court, per Appau JSC, while discussing the new formulation of the law of conspiracy stated that; “From the definition of conspiracy provided under section 23(1) of Act 29, 1960, a person can be charged with the offence even if he did not partake in the accomplishment of the said crime, where it is found that prior to the actual committal of the crime, he agreed with another or others with a common purpose for or in Page 4 of 10 committing or abetting that crime……... This double-edged definition of conspiracy arises from the undeniable fact that it is almost always difficult if not impossible to prove previous concert in conspiracy cases. Conspiracy could therefore be inferred from the mere act of having taken part in the crime where the crime was actually committed. Where the conspiracy charge is hinged on an alleged acting together or in concert, the prosecution is tasked with the duty to prove or establish the role each of the alleged conspirators played in accomplishing the crime’. ( Emphasis added)’ From the above, for conspiracy to commit an offence to succeed, the prosecution must prove the elements of conspiracy that: 1. Two or more persons are involved 2. They agree to act together 3. The agreement to act together and, the said purpose of their agreement or acting together as to commit a crime in this case robbery. The offence of Robbery Section 149 of the Criminal and Other Offences Act, 1960, Act 29, and the section states that, “A person who commits robbery commits a first-degree felony”. Section 149 as amended by the Criminal Code (Amendment) Act, 2003, (Act 646) also states that, “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 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 of Act 29 defines robbery as; ‘A person who steals a thing is guilty of robbery if, in and for the purpose of stealing a thing, he uses any force or causes any harm to any person, with intent thereby to prevent or overcome the resistance of that or any other person to the Page 5 of 10 stealing of the thing.’ This harm to a person may be caused with the use of offensive weapon or force. Section 149(3) defines offensive weapon as any article made or adapted for use to cause injury to the person or damage to property or intended by the person who has the weapon to use it to cause injury or damage; and “offensive missile” includes a stone, brick or anything likely to cause harm, damage or injury if thrown.” In Behome V. The State [1979] GLR 112, it was held that “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 thereby to prevent or overcome the resistance of his victims, to the stealing of the thing.” In its turn, the offence of stealing, which lies at the core of the offence of robbery, is defined in section 125 of Act 29 as “A person steals who dishonestly appropriates a thing of which that person is not the owner.” Therefore, the elements of the offence of robbery are: 1. The Accused dishonestly appropriated a thing not owned by him or her, and in the care or custody of the victim; 2. The Accused used force or harm or threat of force on the victim or on the person of another; 3. The force or threat of force or harm was intended to prevent or overcome any resistance to the stealing. From the evidence on record, appellant and one Kofi at large went to the complainant’s garage, negotiated for the vehicle, they both boarded the unregistered car with the two complainants, PW1 and PW2, and at a section of the road, Appellant pulled on PW1 while Kofi now at large pulled a pistol on PW2. Appellant and his accomplice succeeded in taking phones from PW1 and PW2, Kofi took over the driving of the car and alighted PW1 and PW2 at Caregivers Vocational School and sped off with the vehicle. Appellant in his defence admitted having been with Kofi. Page 6 of 10 He also admitted that the car got broken down in the middle of the road. At the end of prosecution’s case, the court ruled that Appellant had a prima facie case to answer. In his defence, Appellant denied the offence contrary to confession in his caution statement. A confession is an acknowledgment in express words, by the accused in a criminal charge, of the truth of the main fact charged or of some essential part of it. By its nature, such statement if voluntarily given by an accused person himself, offers the most reliable piece of evidence upon which to convict the accused. See the case of Russel (supra). In the case of STATE V. OTCHERE AND OTHERS [1963] 2 GLR 463, it was held that “A confession made by an accused person of a commission of a crime is sufficient to sustain a conviction without any independent proof of the offence having been committed by the accused.” He testified that his statement was taken under duress. He however provided no evidence to substantiate the type of duress he went through. He admitted the vehicle they were driving in, un-registered vehicle got broken down and they had to run and found themselves in the house of Samuel Badu. That he was arguing with Kofi who is at large when he had urgency to visit the toilet. That the police arrested him from the toilet. Prosecution testified that the two phones were found in the toilet bin. The principle of law is also that a witness or a party whose evidence on oath is contradictory to a previous statement by him whether sworn or unsworn is not worthy of credit and his evidence cannot be regarded as being of any importance in the light of the previous contradictory statement unless he is able to give a reasonable explanation for the contradictions. See Gyabaah v Republic [1984-86] 2 GLR 416 CA, Odupong v The Republic [1992-93] GBR 1038, Aborgame v The Republic [2009] 23 MLRG 52 CA. I am of the view that Prosecution proved all the ingredients of the offence against the Appellant. On the main issue of mitigation of sentence, the minimum sentence that can be imposed on a person convicted for robbery in which no weapon or missile was used Page 7 of 10 is ten years and a minimum of fifteen years for a person convicted for robbery in which offensive missile or offensive weapon or force was used. Please see page 357 of Contemporary Criminal Law in Ghana by Dennis Adjei. The trial judge had the legal discretion to sentence above the minimum of 10/15 years looking at the circumstances of the case. In this case, an offensive weapon was used. The complainants testified that, Appellant herein pulled a pistol on Francis and later when they were chasing their car in a taxi, shots were fired at the taxi as it pursued them. And so therefore, the minimum sentence should be 15 years. Sentencing for the offence of conspiracy is provided for by section 24 of Act 29. Section 24 provides that “If two or more persons are guilty of conspiracy for the commission or abetment of any crime, each of them shall, in case the crime is committed, be punished for that crime, or shall, in case the crime is not committed, be punished as if he had abetted that crime.” In the case of SAMUEL AGOE MILLS ROBERTSON VS. THE REPUBLIC [2014] DI SC 5155 HER ladyship Justice Owusu held that “sentencing is discretionary and where the discretion has been judicially exercised, an appellate court has no just cause to interfere with the exercise of discretion. The principles upon which the court would act on appeal, against sentence were that it would not interfere with a sentence on the mere ground that if members of the land had been trying the appellant they might have passed a somewhat different sentence. The court would interfere only when it was of the opinion that the sentence was manifestly excessive having regard to the circumstances of the case, or that the sentence was wrong in principle.” The general principle on sentencing is that 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. The trial judge must also take into consideration the prevalent wave of the particular crime, and other mitigating and aggravated considerations before imposing such deterrent sentence. Page 8 of 10 The learned Trial judge noted in her judgement that she considered the plea of the convict which is, he be forgiven and that he is the one looking after his children. I think as prosecution did not state that he had any criminal record, that he is a first-time offender, the learned trial judge also considered the aggravating factors as rising incidence of robberies in the jurisdiction, the modes used by the convict and the fact that he had been in custody for about one year during the trial. I do not think I need to disturb the sentence. This appeal does not merit grant, same is hereby dismissed in its entirety as being unmeritorious. (SGD) H/L COMFORT KWASIWOR TASIAME (JUSTICE OF THE HIGH COURT) REFERENCE • KINGSLEY AMANKWAH (a.k.a. SPIDER) VS. THE REPUBLIC [2021] DLSC 10793 • Alex Onumah Coleman and Another Vrs Newmont Ghana Gold and Others (J4/67/2019) [2021] Unreported SC (10 March, 2021) • Abdulai Fuseini v. The Republic, reported in [2020] Crim. LR • Section 11(2) of the Evidence Act, 1975 NRCD 323 • FAISAL MOHAMMED AKILU v THE REPUBLIC (SC) (Unreported) CRIMINAL APPEAL NO. J3/8/2013 dated 5th July 2017, • Section 149 of the Criminal and Other Offences Act, 1960, Act 29, • Behome V. The State [1979] GLR 112, • STATE V. OTCHERE AND OTHERS [1963] 2 GLR 463, Page 9 of 10 • Gyabaah v Republic [1984-86] 2 GLR 416 CA, Odupong v The Republic [1992- 93] GBR 1038, Aborgame v The Republic [2009] 23 MLRG 52 CA. • SAMUEL AGOE MILLS ROBERTSON VS. THE REPUBLIC [2014] DI SC 5155 Page 10 of 10