IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
KUMASI - A.D 2018
FREDERICK ANNOR (ALIAS NANA BONSU)- (Appellant)
THE REPUBLIC - (Respondent)
DATE: 21ST DEC. 2018
SUIT NO: H1/19/2013
JUDGES: MARIAMA OWUSU J.A (PRESIDING), HENRY A. KWOFIE J.A, AMMA GAISIE J.A
STEPHEN OSEI KOFI FOR THE APPELLANT
ANNA FRANKLINA OPOKU (S.A.) FOR THE REPUBLIC
HENRY KWOFIE J.A:
This appeal has been launched by the appellant herein against the judgment of the High Court Kumasi dated 7th May 2011. The appellant and another person were convicted of the offences of Conspiracy to commit crime to wit robbery contrary to Section 23(1) and 149 of Act 29/60 robbery contrary to Section 149 of Act 29/60, and assault.
They were both sentenced to nineteen (19) years I.H.L. on each count to run concurrently. Aggrieved by the said conviction and sentence, the appellant filed a petition of appeal on 14/10/2016 pursuant to leave granted by the High Court Kumasi on 13th October, 2016 on the following grounds:
i. The decision of the Court has created or occasioned a miscarriage of justice.
ii. The sentence is excessive and harsh
iii. Additional grounds of appeal will be filed upon receipt of the record of proceedings.
Subsequently on 02/03/2018 the appellant filed additional grounds of appeal pursuant to leave granted on 27/02/2018 as follows:
a) The trial High Court erred when it proceeded to hear the case without taking the plea of the accused person.
b) The High Court erred when it convicted the accused person to a prison term of nineteen (19) years on the third count of assault.
The facts of this case relating to the appellant are that the complainant was a cashier at the Unity Oil Filling Station, Afrancho branch. The appellant is an artisan whilst the other accused person is a sawmill operator. On Sunday, the 20th of June 2010 at about 7:20 am, the appellant stopped a taxicab being driven by one Isaac Yankyera. The appellant asked the driver to take them to the Unity Oil Filling Station at Afrancho.
On arrival at the station at about 7:30 am, the appellant alighted and entered the office of the complainant and brought out a locally made pistol and ordered the complainant to surrender all the money in her possession. The appellant succeeded in taking an amount of GH¢2,684 and a Barclays Bank cheque with face value of GH¢371.70 from the complainant and rushed out with it to board the waiting taxi. He then ordered the taxi driver to move. Just as the driver was about to move, he heard shouts from the complainant saying “thief, thief”. The driver became suspicious of the appellant and was thus reluctant to move the vehicle. The appellant pulled out the pistol and pointed it at the driver’s head and began assaulting him. The driver drove to Afrancho town where he could be rescued. He turned off the car engine and jumped out of the taxi cab amidst shouts. This attracted the attention of onlookers and bystanders who overpowered the appellant and the other person and arrested them. The police who had the information arrived later at the scene and arrested the accused persons.
Arguing ground (a) of the additional ground of appeal which is that the High Court erred when it proceeded to hear the case without taking the plea of the appellant, counsel submitted that the plea of an accused person is so crucial in a criminal prosecution such that the plea of an accused person will determine whether the accused person would be convicted and sentenced or the accused will go through a full trial.
Counsel referred to Section 171 and 172 of the Criminal Procedure and Other Offences Act 1960 (Act and submitted that the law requires that before an accused person could be tried under our laws, he should in the first place be given the opportunity to either admit or deny the offence before the trial proceeds. He referred to the case of Mensuo Vrs The Republic (1971) 2 GLR 30 and submitted that in the absence of a valid plea, the whole trial was a nullity as it was akin to determining the case against the accused/appellant without giving him a hearing.
Responding to the arguments of counsel for the appellant, counsel for the Respondent/Republic submitted that a careful reading of the judgment especially at page 90 of the Record of appeal shows that the plea of the appellant was taken.
In this case counsel contended that if the appellant’s plea was not even taken, this amounts to an irregularity which should not affect the validity of the judgment as the appellant was given a full trial and he was also given the opportunity to open his defence.
The record of appeal shows at page 4 that on the 12th of November 2010 the appellant and one other person were charged with the offences of conspiracy to commit a crime to wit Robbery and the substantive offence of robbery. After the charge was read, the facts of the case was read and thereafter the PW1 Yaa Dufie the complainant was called upon to lead evidence. Counsel for the appellant Mr. William Kusi was present in Court that day and extensively cross-examined the PW1. On that same day the PW2 Abigail Arko also gave evidence and she was also extensively cross-examined by William Kusi counsel for the appellant. The PW3 Stephen Bruken also gave evidence and was also extensive by cross-examined by counsel. The case was then adjourned to 29th November 2010 for continuation. The record of appeal shows that on all the subsequent days counsel for the accused was present and extensively cross-examined all the prosecution witnesses. Indeed, the record shows at page 36 that when the police investigator D/Sgt Ali Usumanu sought to tender the caution statement of the appellant, counsel Mr. William Kusi raised an objection to the admissibility of the caution statement thus necessitating an adjournment for the Court to conduct a mini-trial with regard to the admissibility of the appellant’s caution statement. The record shows that after the mini trial, the objection raised by counsel was overruled and the appellant’s caution statement was admitted in evidence as Exhibit C. Indeed counsel Mr. Kusi was present on 15th March 2011 and led the appellant to give evidence in the case.
In his judgment the trial judge stated at page 90 of the record of appeal as follows:
The accused are jointly charged on two counts of Conspiracy to commit crime under Section 23(1) and 149 of Act 29/60 and robbery under Section 149 of Act 29/60.
They each pleaded Not Guilty to the charges. The offence are charged to have been committed on 20th June 2010”
Thus, whereas the record of appeal at page 4 does not indicate that the plea of the appellant was taken, the trial judge in his judgment states otherwise.
Section 171 of the Criminal Procedure and Other Offences Act, 1960 Act 30 provides as follows:
“(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 accused is not personally present, counsel for the accused shall be asked to plead guilty or not guilty.
(2) 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 and the section of the enactment creating the offence.
(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 person and pass sentence or make an order against the accused unless there appears to it sufficient cause to the contrary.
(4) Where the plea is one of not guilty the Court shall proceed to hear the case.
Section 172 of Act 30 also provides thus:
“(1) Where the accused does not plead guilty to the charge, the Court shall proceed to hear the evidence as the prosecution adduces in support of the charge”.
I have read the case of Mensuo Vrs. The Republic (Supra) cited by counsel for the appellant. That was a case in which a Magistrate purported to have convicted the appellant for contempt of Court in facie curiae and to have sentenced him to two years imprisonment with hard labour.
On appeal the High Court per Mensah Boison J in allowing the appeal stated at page 31 of the Report that:
“It will be observed that contrary to the requirement of Section 171 of Act 30, which requires that an accused or his advocate “shall be asked whether he pleads, guilty or not,” no plea was taken from the accused. Nor was the accused given any opportunity to be heard in his defence at any stage of the proceedings.
Assuming that there was a lawful charge, a Court can proceed to try an accused only when a plea has been taken in accordance with Section 171(2) of Act 30. Therefore, without a plea having been entered, a Court cannot exercise its jurisdiction to try an accused. It follows that the absence of a valid plea renders the whole trial null and void.”
I think that the Mensuo case and that statement of the law should be limited to the peculiar facts of that case. There are against the decision in the Mensuo cases other cases like COP Vrs Bonsu and Others (1957) 2 WALR 334; COP Vrs. Boakye (1958) 3 WALR 524 which took the view that a conviction in the circumstances where the plea was not taken ought not to be quashed unless there had been a miscarriage of justice.
In the case of Kingsley Kuchama Vrs. The Republic (2018) 122 GMJ 24 the Supreme Court held at page 29 per Anin Yeboah JSC that:
“In the view of this Court, the submission of counsel for the appellant that the mere absence of the word “convict” in the above order of the Court renders the thirty years sentence bad in law is very disturbing indeed. In as much as in all criminal cases in this country and elsewhere, the liberty of the accused person is paramount, a Court of law naturally in the course of judicial proceedings may make errors in the nature of omissions, but it is the duty of appellate Courts to carefully consider whether such errors are fundamental and occasion injustice to an appellant”
This position of his Lordship has found statutory support in Section 406(1) of the Criminal and Other Offences (Procedure) Act 1960 Act 30 dealing with irregular proceedings which states:
“406(1) subject to this part, a finding, sentence or order passed by a Court of competent jurisdiction shall not be reversed or altered on appeal or review on account
a) of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgement or any other proceedings before or during the trial or in an enquiry or any other proceedings under this Act……………unless the error, omission or irregularity has occasioned a substantial miscarriage of justice.
I have already set out earlier in this judgement the conduct of the proceedings before the trial judge. In this case where the record of appeal shows that the charges were properly laid before the Court, the facts of the case read and the appellant and his counsel have taken part in the whole proceedings and extensively cross-examined the prosecution witnesses and the appellant has given evidence in person, has the failure to record the plea of the appellant occasioned a substantial miscarriage of justice? I have no hesitation in answering in the negative. In my view the mere absence of the plea of the appellant should not be used as a ploy to permit the appellant who has been regularly tried by a Court of competent jurisdiction and found guilty of the offence to escape the clutches of the law. Ground a) of the additional ground of appeal is hereby dismissed.
With regard to ground b) of the additional ground of appeal to the effect that the trial judge erred where he sentenced the appellant to 19 years imprisonment on the 3rd count of assault, it suffices to say that the record of appeal does not support that assertion. The record shows at page 96 that the trial judge convicted the appellant and the other accused person on the 2 counts of conspiracy to commit crime to wit Robbery and the substantive offence of robbery. It was for these 2 offences that he sentenced the appellant and the other accused to 19 years I.H.L. and not the third count of assault Ground b) of the additional ground has no merit and is dismissed.
Counsel for the appellant argued ground ii) of the original ground of appeal and contended that the sentence of 19 years I.H.L imposed on the appellant was harsh and excessive. He argued that since nobody was hurt and the money involved was retrieved the appellant should have been given a sentence of 15 years which is the minimum.
It is trite law that sentencing remains a matter for the discretion of the Court so long as it is within the statutory limit. See the case of Kwashie Vrs. The Republic (1971) 1 GLR 488. The Court of Appeal established in that case some factors which could aid a Court when sentencing a convict. These factors include:
i) The intrinsic seriousness of the offence
ii) The degree of revulsion felt by law abiding citizens of the society for the particular crime.
iii) The premeditation with which the criminal plan was executed
iv) The prevalence of the crime within the particular locality
v) The sudden increase in the incidence of the particular crime
vi) Mitigating or aggravating circumstances such as extreme youth, good character and the violent manner in which the offence was committed.
Indeed, the record of appeal shows that in sentencing the appellant, the trial judge took into consideration the fact that the appellant had been in custody for almost a year before the conviction and sentence. This clearly shows that the trial judge would have sentenced the appellant to a much longer prison term than he did but for the fact that he had been in prison for a year. This ground of appeal also fails and is dismissed.
On the whole the appeal of the appellant has no merit and is dismissed.
HENRY A. KWOFIE
(JUSTICE OF THE COURT OF APPEAL)
I Agree SGD
(JUSTICE OF THE COURT OF APPEAL)
I Also Agree SGD
(JUSTICE OF THE COURT OF APPEAL)