AKWASI ANNIN vs. THE REPUBLIC
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE COURT OF APPEAL
    KUMASI - A.D 2017
AKWASI ANNIN - (Appellant)
THE REPUBLIC - (Respondent)

DATE:  23RD OCTOBER 2017
CRIMINAL APPEAL NO:  H2/05/2016
JUDGES:  E. K. AYEBI (PRESIDING) JA, GERTRUDE TORKORNOO (MRS.) JA, ANGELINA M. DOMAKYAAREH (MRS.) JA
LAWYERS:  KOFI ADDO FOR APPELLANT
CECILIA ANIMA PEPRAH TAKYI (S.A.) FOR RESPONDENT
JUDGMENT

AYEBI, JA

1. On 15th March 2012, the appellant was arraigned before the High Court, Kumasi on one count of robbery contrary to section 149 of the Criminal and Other Offences Act, 1960 (Act 29). After a full trial, he was pronounced guilty of the offence, convicted and sentenced to 15 years imprisonment in hard labour. This appeal lodged pursuant to the leave of this court on 14th April 2015, is against both the conviction and sentence.

 

2. The complainant in the case is James Nketiah, driver in charge of Kia Pride taxi cab with registration number GT 45 79 W. In the evening of 25th January 2012, he was plying his trade in town. At about 8.30 pm at Kwadaso-Kumasi, the appellant stopped him and requested that he takes him to Maria Montessori School. They agreed on a fare of GH¢8.00 for a round trip.

 

3. On reaching a place called “Engineer”, the appellant asked the complainant to stop and he did. The appellant then pulled out a kitchen knife and ordered the complainant out of the car and threatened to stab him if he did not. The complainant got hold of the knife and a struggle ensued between them in the car. The complainant activated a steer locking device and took to his heels. While in flight, he shouted on top of his voice for help. The shouts attracted some people to the scene. Although appellant sparked the car, he was unable to move it.

 

4. On seeing people coming to the aid of the complainant, appellant began to ran away. But he was chased and arrested. He was taken to the police station from where he was sent to the hospital for treatment because he was assaulted by those who arrested him.

 

5. At the trial, the complainant who is PW1, narrated what actually took. He told the court that when appellant stopped him, he asked him to take him (appellant) to Odeneho Kwadaso and then to Kwadaso Estate. They agreed on a fare of GH¢8.00, he said. PW1 also stated that when the appellant stopped him, he held something in a black polythene bag. Then when they got to Montessori area, appellant told him he would alight. But then appellant asked him to move forward a bit. And when he got to an area called “Lawyer” which was dark and quite, he requested to alight. PW1 continued that, in the process of alighting, appellant pointed a knife at him, with the demand that he should hand over the car to him. PW1 said he pleaded with the appellant because his car owner would think he had sold the car and pocketed the proceeds. But the appellant warned him not to engage in any exchanges with him. In the ensuing struggle, PW1 said he held the top of the knife but appellant pulled it through his hand and dropped it.

 

6. According to PW1, a security device he fixed on the car renders the car immobile when it is off. So he activated the device and fled amidst shouting that “thief, thief, my car has been seized”. He said the appellant tried to move the car but could not. So the residents in the area who heard his shouts came around. He told them the appellant is the thief who has seized his car. Two of them helped arrest the appellant and accompanied him to the Central Police Station. He said although appellant denied he had a knife on him, they found it in the front seat.

 

7. PW2 was one of those who arrested the appellant and accompanied PW1 to send him to the Police station and then, the hospital. PW3 was the police investigator. After their evidence, the trial judge held that a prima facie case has been established against the appellant by the prosecution and so called upon him to enter into his defence. The appellant opted to give evidence on oath.

 

8. It is his case that apart from operating galamsay at Tarkwa, he does not do any other work. He said he does give lotto numbers to people to stake and they win. On the day of the incident, which was a Wednesday, a man called to inquire if he had numbers to give him to stake on Thursday. The man invited him to bring the numbers to him at Santasi. So at 8.00pm, he hired the taxi of PW1 on “dropping” basis to Santasi Montessori area and back. Appellant said PW1 demanded GH¢8.00 as the fare. He requested him to reduce it. But PW1 told him to board the taxi and they will continue to bargain on the way.

 

9. Indeed on the way they bargained and he told PW1 that he was sending lotto numbers to somebody. Appellant said PW1 refused his offer of GH¢6.00. However, when they reached the “Engineer” area, the person was not there. So he gave PW1 GH¢3.00 to go as he waits for the person. But PW1 rejected the GH¢3.00, got down and requested him to add GH¢1.00 to make GH¢4.00 which was his charge. Appellant said he also refused to add the one cedi.

 

10. It is the further case of appellant that PW1 told him that if he refused to add the one cedi, he (PW1) will cause problem for him by labelling him a thief but he replied that he could not do that because of one cedi. Appellant said at that juncture, he moved from the side of PW1 forward to wait for the lotto man. PW1 was then shouting thief, thief etc. Two men appellant said, emerged with sticks in hand. He decided to meet them to explain to them that he was not a thief.

 

11. Just as he opened his mouth, one of them hit his head with a stick. Appellant said he told them he was not a thief and pleaded with them to be patient so that he called his relatives for confirmation. But one of them took away his phone from his hand and pulled his key and an amount of GH¢60.00 from his pocket. The crowd that gathered assaulted him severely, according the appellant.

 

12. According to the appellant, while shouting, he heard PW1 say “this is the knife he used to steal my car”, etc. Then, while some of the people say he should be burnt with a tyre, others say he does not look like a thief so he should be sent to the police station. Eventually he was sent to the Central Police Station. The police saw him bleeding and weak and referred him to the Komfo Anokye Teaching Hospital (KATH). He asserted that it was PW2 who hit him with the stick.

 

13. Basically, this is the evidence the prosecution and the appellant placed before the trial court. The trial judge in a fairly lengthy judgment analyzed the entire evidence with emphasis on the burden of persuasion and of producing evidence on the prosecution and then the burden of proof on the appellant after he had held at the end of the prosecution’s case that a prima facie case has been established against him. He concluded at page 87 of the record of appeal that the prosecution had established its case beyond reasonable doubt. The appellant he held, failed to raise any reasonable doubt in the prosecution’s case.

 

14. At page 87 of the record of appeal, the trial judge stated:

 

“After perusing the evidence of PW1, PW2 and PW3 in totality, the court concluded that it established consistently that the accused person on the date in question attacked PW1 with a knife and took control of his vehicle from him.

 

The accused stole with force of arms and put the life of PW1 into jeopardy in the course of his venture. There is therefore sufficient evidence upon which the accused can be convicted”.

 

15. At the same page, the trial judge reminded himself of his duty to consider the defence put up by the appellant in order to determine whether or not it raised a reasonable doubt to the prosecution’s case against him. He noted accurately that, the appellant’s defence is centred around a disagreement over the fare charged him by PW1. He reviewed what the appellant stated in Exhibit ‘B’, his cautioned statement that they agreed on a fare of GH¢8.00 for a return journey. He compared that statement with the appellant’s evidence on oath to the effect that while on board the taxi, they negotiated the fare. But PW1 refused his offer of GH¢6.00 for a return trip and hence the rejection of his GH¢3.00 offer for just “dropping”.

 

16. According to the trial judge, “the evidence of the accused on this matter was clearly and (sic) afterthought”. He thereon concluded that:

 

“It is evident that the defence put up by the accused was a ruse. He committed the crime and designed the story of the fare wars (sic) as a cover-up”.

 

17. The trial judge on this basis found the appellant guilty, convicted and sentenced him accordingly. The instant appeal is against both conviction and sentence. The grounds of appeal are as follows:

(a) The court erred when it wholeheartedly accepted the evidence of PW1 when the same was seriously flawed and inconsistent regarding time and sequence.

(b) The court erred when it failed to critically examine the evidence of the appellant.

(c) The judgment cannot be supported having regard to the evidence on record.

(d) The court erred when it held that the prosecution has established its case beyond reasonable doubt and that the accused failed to raise any reasonable doubt when there were several doubts as to time and place which should have inured to the benefit of the appellant.

(e) That in the circumstance of this case, the sentence was too harsh and excessive.

 

18. In the submission of counsel for the appellant, he argued grounds (a), (b), (c) and (d) together. Indeed grounds (a), (b) and (d), all of which attacked the quality of evidence led by the prosecution, is subsumed under the omnibus ground in ground (c). I noticed that “time and sequence” and “time and place” featured in grounds (a) and (d) of the appeal. But there is no direct submission in that regard. Rather, the submission centred on the contradictions or inconsistencies in the evidence of the prosecution witnesses.

 

19. The first is the evidence of PW1 that the appellant possessed a knife and used it to threaten him. The knife is Exhibit ‘A’ in the trial court. The appellant appeared to be denying PW1’s evidence. It is however clear from his evidence-in-chief in court that he knew of that accusation during his arrest. But in his cautioned statement, Exhibit ‘E’, he said nothing about the knife by way of denial or admission.

 

20. The case of the appellant now is that PW1 said he was carrying a black polythene bag when he entered the car but not a knife. Indeed PW1 in his evidence-in-chief said when appellant stopped him, he was carrying something covered in a black polythene bag. At the trial, counsel for the appellant asked him:

“Q: Did you found out what (sic) in the polythene bag?

A. No, but when he was arrested it contained lotto papers

Q. So the accused was going to transact lotto business

A. I do not believe that”.

 

21. Based on this evidence of PW1, counsel for appellant submitted that, appellant’s denial of possession and use of the knife has been corroborated by PW1. The submission cannot be true because the evidence of PW1 does not support that conclusion. In the first place wherever the knife was found in the car and whether in the hand of the appellant, the fact of the existence of the knife cannot be denied. Secondly, there was no suggestion by the appellant that PW1 framed him up with the knife or planted it in the car when the argument over the fare ensued. This is because counsel for the appellant failed to establish that PW1 keeps a knife in his car for protection because he works in the night.

 

22. Going back to the evidence of PW1, he said when appellant stopped him, he was carrying a black polythene bag, the contents of which he did not know. But then after his arrest, he got to know that the black polythene bag contained lotto papers. It has to be noted that PW1 got to know the contents of the polythene bag after the appellant had long succeeded in scaring him away from his car with the knife. So the fact that PW1 did not see appellant carrying a knife at the time he was stopped or at the beginning of the journey did not mean that the appellant could not have been hiding the knife 25cm in length on any part of his body or in the lotto papers in the black polythene bag. I think the right question counsel for the appellant should have asked to elicit answers which would have absolved the appellant on the possession of the knife was not asked. The submission is therefore not tenable.

 

23. Still on the knife and its use by the appellant. In his evidence-in-chief, at page 5 of the record of appeal, PW1 said he held the top of the knife. And in an answer under cross-examination, he said because he held the unsharpened part of the knife, he did not sustain any cut or injury when the appellant pulled it through his palm (p.8). It was counsel for the appellant in cross-examining PW1 who introduced the word “tip” of the knife (p.8) upon which he based his submission that it is not possible for PW1 not to sustain a cut if the knife was pulled through his palm. The introduction of the word “tip” instead of “top” of the knife misled the trial judge to resort to extraneous matters to support PW1’s evidence. But PW1’s own evidence about the struggle with the appellant over the knife is perfectly reasonable.

 

24. The appellant’s counsel also raised issued with where according to the prosecution, appellant was arrested. Indeed, the accounts of the prosecution witnesses appear to differ. But in effect they were all saying the same thing. PW1 in his indirect evidence said appellant got down and was running away when he was arrested. On his part PW2 said he arrested him at the steer and pulled him out of the car. The statement of Patron Adomako in Exhibit ‘1’ also said he was chased when he got out of the taxi and was running away.

 

25. As I said above all the witnesses were saying the same thing in different words. The picture painted by the various evidence is that the witnesses saw the appellant come out of the taxi, attempted to run away but was arrested. There is therefore no material contradiction in the evidence of the witnesses. The evidence of the witnesses established one thing beyond any doubt. It is that the appellant was seen in taxi-cab or coming out of the taxi-cab of PW1 when PW1 was outside the taxi-cab shouting “thief, thief” etc.

 

26. Yet again, appellant took issue with the distance PW1 was away from the taxi-cab when PW2 met him in answer to his distress call. PW1’s evidence is that when he rushed out of the taxi-cab, he was running and shouting for help for about 30 minutes. The submission is that if PW1 an able-bodied young man ran for 30 minutes, he should have been quite a long distance away from the taxi-cab. But that inference from the evidence of PW1 is not borne out by the evidence of PW2 whom PW1 met first.

 

27. The following dialogue took place between counsel for the appellant and PW2 in cross-examination at page 21 of the record of appeal:

“Q: Where did you meet PW1?

A. I met him at our gate.

Q. That means PW1 had move (sic) from the scene to the gate.

A. I came out when I heard the shout.

Q. Where you met PW1 meant PW1 was not (sic) the scene of the event.

A. Correct. The distance from the car to our gate is not a long one.

Q. When you met PW1, was he walking or running?

A. He was running.

Q. How long did it take you to get to the place you met PW1 after you had heard the shouts?

A. It took about 2 minutes.

Q. So from the time you met him to where the car was took about 2 minutes?

A. That is correct”.

 

28. In my humble view that inference upon which this last question above was based and the answers thereon are both incorrect. If the evidence of PW2 is that he met PW1 after walking two minutes away from his house and where he met PW1 was not the scene of the event/crime, how then should the suggestion that it took PW2 two minutes from where he met PW1 to where the car is be sustained? The suggestion and the answer to it is misleading because earlier on PW2 told the court that the distance between his house and the scene is about the distance from the court room to the street in front. It is indeed a wasted effort by counsel for appellant to use the whole of the evidence of PW2 to undermine the evidence of PW1 on the issue of distance.

 

29. It has to be placed on record also that PW1 stated that the 30 minutes he said he run is an estimate in the circumstances he found himself in. I give him credit for that candid opinion. In any case, all these issues about where the knife was found when the appellant was arrested, where the appellant was arrested and how far PW1 was away from the scene of the crime/event, are all events which occurred after the crime alleged against the appellant had taken place.

30. It is for these alleged inconsistencies and or contradictions in the evidence of the prosecution witnesses on these “after events” which in the submission of the appellant, has created reasonable doubts in the case of the prosecution and these doubts should have been resolved in his favour.

 

31. In our criminal jurisprudence, the burden of proof on the prosecution on the one hand and on the accused on the other, is trite. Similarly the standard of proof on each of them is also common knowledge and immutable. The trial judge adequately espoused these principles in the judgment and applied them. Article 19(2) of the 1992 Constitution protects an accused against false accusation or unwarranted harassment in a criminal action. It states that:

 

“A person charged with a criminal offence shall be presumed to be innocent until it is proved or has pleaded guilty”.

 

32. This constitutional provision accords with the basic elementary principle that “he that asserts assumes the onus of proof”. Therefore the prosecution who alleged the accused has committed a crime must prove the allegation (section 11(1) of NRCD 323 refers). In Woolmington vrs Director of Public Prosecutions [1935] AC 462 at 481, Sankey LC noted:

 

“While the prosecution must prove the guilt of the prisoner, there is no such burden laid on the prisoner to prove his innocence and it is sufficient for him to raise a doubt as to his guilt; he is not bound to satisfy the jury of his innocence”.

 

33. Also in Commissioner of Police vrs Antwi [1961] GLR 408, the Supreme Court held similarly that the accused person is not required to prove anything. All that is required of him is to raise reasonable doubt as to his guilt.

 

34. To cap it all on the burden of proof assumed by the prosecution, section 15(1) of the Evidence Act, 1975, (NRCD 323) provides that:

 

“Unless and until it is shifted, the party claiming that a person is guilty of crime or wrongdoing has the burden of persuasion on that issue”.

 

What the section means is that until the prosecution has succeeded in establishing a prima facie case against the accused in which case the accused will be required to explain his conduct, there will be no burden on him to prove anything.

 

35. The standard of proof of a crime in a criminal trial which the burden of proof on the prosecution must attain and the standard which the accused’s defence must reach are not the same either. While the prosecution is required to prove the case against the accused beyond reasonable doubt, the accused need only raise a reasonable doubt. The principle has been codified in various sections in the Evidence Act, 1975 (NRCD 323) and they are worth quoting in extenso.

 

Section 11(2): In a criminal action the burden of producing evidence when it is on the prosecution as to any fact which is essential to guilt, requires the prosecution to produce sufficient evidence so that on all the evidence a reasonable mind could find the existence of the fact beyond reasonable doubt.

 

Section 13(1): In any civil or criminal action the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond reasonable doubt.

 

Section 22: In a criminal action a presumption operates against the accused as to a fact which is essential to guilt only if the existence of the basic facts that give rise to the presumption are found or otherwise established beyond reasonable doubt, (and thereupon in the case of a rebuttable presumption, the accused need only raise a reasonable doubt as to the existence of the presumed fact).

 

36. All the above three sections emphasize the fact that the prosecution must prove the case against an accused beyond reasonable doubt in order to succeed. The accused as I noted is only required to raise a reasonable doubt as to his guilt. This requirement is stated in section 11(3) of NRCD 323 as follows:

 

“In a criminal action the burden of producing evidence, when it is on the accused as to any fact the converse of which is essential to guilt, requires the accused to produce sufficient evidence so that on all the evidence a reasonable mind could have a reasonable doubt as to guilt”. See also second part of section 22 quoted above and bracketed.

 

37. This then is the respective obligation as regards proof on the prosecution and the appellant. In ground (d) of the appeal, the appellant credited himself for having attained the requisite standard of proof by raising a reasonable doubt as to his guilt while the prosecution has failed to prove its case beyond reasonable doubt. The term proof beyond reasonable doubt has no better explanation or definition than that of Denning J (as he then was) in Miller vrs Minister of Pensions [1947] 1 All ER at 373 that:

 

“It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice”.

 

The celebrated judge continued that:

 

“If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence ‘of course it is possible but not in the least probable’, the case is proved beyond reasonable doubt”.

 

It means therefore that proof beyond reasonable doubt does not mean proof beyond every doubt. It means proof beyond every reasonable doubt as regards the circumstances of the particular case or the facts of the particular case.

 

38. And according to section 11(2) of NRCD 323, what the prosecution must prove beyond reasonable doubt is any fact which is essential to the guilt of the accused. It is common knowledge that in any trial, it is not every issue or fact testified on is essential to the guilt of the accused and thus required proof beyond reasonable doubt. In this case, the appellant was charged with the offence of robbery contrary to section 149 of the Criminal and Other Offences Act, 1960 (Act 29). It is proof of the elements of the offence of robbery which are essential to his guilt and not what the prosecution/respondent called the resultant position of the knife or the parties relied on by the appellant in his submission.

 

39. In section 150 of Act 29, robbery is defined as:

“A person who steals a thing is guilty of robbery if in and for the purpose of stealing the thing, he uses any force or causes any harm to any person or if he uses any threat or criminal assault or harm, with an intent thereby to prevent or overcome the resistance of that or other person to the stealing of the thing”.

 

40. Thus in Behome vrs The Republic [1979] GLR 112, the court 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 intent thereby to prevent or overcome the resistance of his victims, to the stealing of the thing”.

 

41. That being so, the essential elements of the offence of robbery is the same as the elements of stealing under section 124 of Act 29 plus the use of force, harm, threat of criminal assault or harm to the owner of the property (thing) with the intent thereby to prevent or overcome the resistance of that person to the stealing of the property (thing).

 

42. The trial judge from the record reviewed the complaint of PW1 to the police and his evidence to the court at the trial. The evidence supports all these elements of robbery which are essential to the guilt of the appellant. In other words, the basic facts which give rise to the presumption of commission of the crime of robbery exist in PW1’s evidence. It will be boring repeating the evidence of PW1 and PW2 and even the statement of Adomako in Exhibit ‘1’ tendered by the appellant. The trial judge as the judgment shows, accepted the case of the prosecution because the appellant failed to raise a reasonable doubt as to his guilt.

 

43. In this appeal, I find that the submission of the appellant is silent on any defence he raised to his guilt which the trial judge failed to consider. What appellant is challenging in this appeal is the possession and use of the knife to threaten PW1. But the evidence of the prosecution witnesses does not absolve him. Aside that, he raised no credible challenge to the judgment appealed against.

 

44. I find in particular that the claim in ground (b) that the trial judge failed to critically examine the evidence of the appellant is not borne out by the judgment. This is because the trial judge adequately considered the case of the appellant at the last two pages and arrived at a fair conclusion. I have already quoted the analysis, the deductions and conclusions he reached. To repeat, the trial judge observed that the appellant put the entire episode on an issue of disagreement over the fare charged him by PW1. But this testimony is at variance with statement to the police in Exhibit ‘E’. In Exhibit ‘E’, appellant is alleged to have told the police that he agreed to PW1’s fare of GH¢8.00, hence PW1 refusal to accept three cedis for dropping only. However, at the trial, appellant said they could not agree on a fare as PW1 refused his offer of GH¢6.00.

 

45. Another contradiction in the case put up by the appellant is about his knowledge of the person he was going to in the area at that time of the night. In his statement to the police, he said he caused PW1 to stop at the place in order to give lotto numbers to one Osei Bonsu in a nearby house. This suggests that the appellant knew the said Osei Bonsu and his house and could locate it that night. But in his evidence to the court, he created the impression that he did not know the said Osei Bonsu personally, let alone his house. In fact he said because Osei Bonsu was not at the place they stopped, he would have to wait for him, hence he gave PW1 the three cedis to go.

 

46. Further to that, appellant stated that when PW1 pointed to him as a thief and he denied, he mentioned the names of his parents to the people. Then he took out his cell phone to call his parents to confirm to the people that he is not a thief. If indeed the appellant was on genuine mission to the area and wanted an independent confirmation of his character, the nearest person he should have ran to and called is Osei Bonsu whose house is nearby according to Exhibit ‘E’ and whose number is on his cell phone and not his parents who were far away. Clearly, this and other pieces of explanation to the charge by the appellant cannot be accepted as having raised a reasonable doubt to the charge. As the trial judge described it, it is a ruse.

 

47. The general rule is that a witness whose evidence on oath is contradictory of a previous statement made by him, whether sworn or unsworn, is not worthy of credit. That is the express holding in State vrs Otchere [1963] 2 GLR 463. The appellant’s previous unsworn statement in Exhibit ‘E’ contradicts his sworn statement in court. But he failed to give any reason for the contradiction. The trial judge was right to disbelieve the case put up by the appellant. In the circumstances, contrary to the submission of counsel for the appellant, the trial judge correctly applied guide directed in Amartey vrs The State [1964] GLR 256.

 

48. Ground (c) of the appeal is that the judgment cannot be supported having regard to the evidence led. That ground of appeal in practice obliges the appellate court to re-hear the case as a whole by analyzing all the evidence on the record before pronouncing on the rightness or wrongness of the judgment of the trial court. In embarking on the function of re-hearing the case, this court takes into consideration not only the case of the prosecution but also the case put up by the appellant. It is only by such an exercise that this court will be able to determine whether or not the prosecution in particular, in accordance with section 10(1) of NRCD 323, had established a requisite degree of belief concerning a fact in its mind.

 

49. As I noted earlier on, in the submission of counsel for the appellant he left out the case put forward by the appellant at the trial court to enable this court consider its reasonableness. Although the appellant has no onus to prove his innocence, he did put up a defence at the trial in order to raise doubt in the case of the prosecution. But as I have stated and demonstrated from the evidence and the judgment, the trial judge considered all the evidence he heard before he came to the conclusion he reached. The conclusion we hold, is sound as it is supported by the evidence on the record. We uphold therefore the conviction of the appellant for robbery and dismiss the appeal against the conviction.

 

50. The ground (e) of the appeal is against the sentence of 15 years IHL which according to the appellant is harsh and excessive. In arguing the ground of appeal, appellant’s counsel relied on Article 14(6) of the 1992 Constitution and the fact that the appellant is young man as well as a first offender. The submission is that the sentence imposed on the appellant failed to take into consideration this Constitutional provision and these mitigating matters which favour the appellant. It is prayed that the sentence be accordingly reduced.

 

51. We note that the submission on this ground of appeal is laced with respected legal authorities on factors which should inform the trial judge’s discretion in imposing any length of punishment on a convict. There is indeed no evidence on record that the trial judge adverted his mind to any of those factors including the mandatory provision in Article 14(6) of the Constitution. And in the case of compliance with Article 14(6) of the Constitution in particular, the fact of compliance with it must be evident from the record as held in Bosso vrs the Republic [2009] SCGLR 420 but not to be presumed as opined in Ojo & Or. vrs The Republic [1999/2000] 1 GLR 169, CA. We are however of the view that none of the mitigating factors canvassed and the relief given in Article 14(6) of the Constitution is available to the appellant in the instant matter.

 

52. In the first place, the minimum punishment for the offence of robbery is fixed by statute. Thus in section 149 of Act 29/60 as amended, it is provided that:

 

“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 (15) years”.

 

53. The appellant employed a knife in the commission of the offence. By definition a knife is an offensive weapon. In accordance with the law, and notwithstanding those mitigating factors, the minimum punishment the trial court could impose and has imposed on the appellant is fifteen years imprisonment. Any term of imprisonment imposed by any court below what is stated in the law will be ultra vires. So despite the provision in Article 14(6) of the Constitution that in sentencing a convict to a term of imprisonment, any period spent in lawful custody during the trial should be taken into account in imposing the term of imprisonment, the court cannot go below the statutory minimum, especially so in this case when the court in its discretion decided to impose the statutory minimum.

 

54. In Frimpong alias Iboman vrs The Republic [2012] 1 SCGLR 297, the Supreme Court speaking through Dotse JSC stated the fate of convicted first offender where the statute creating the offence provided the punishment therein. At page 328, he said:

 

“A first offender must normally be given a second opportunity to reform and play his or her role in society as a useful and law abiding citizen. That is why it is desirable for a first offender to be treated differently when a court considers sentence to be imposed on a first offender vis-à-vis a second or a habitual offender. However, all that will change and evaporate into thin air if the crime committed by the first offender is such that the minimum sentence is fixed by law. For example, narcotics offences where the minimum sentence is 10 years, then the principle of considering first offenders will only be taken into account after the court considered that minimum and mandatory sentence. (He gave other examples where the minimum custodial sentences are fixed by law such as rape, defilement, some motor offences and robbery as in this case).

 

He continued:

 

“In all these cases, the minimum custodial sentence is fixed by law upon conviction and the fact that the accused/appellant is a first offender would be of no consequence. The minimum sentence in these cases would have to be imposed before the fact of being a first offender will be considered. The point being articulated here is that notwithstanding the general principle that first offenders should be treated leniently when sentence is being imposed, the measuring rod or standard in any circumstance is the offence creating statute and the punishment provided therein. Where, as in the instant case, just like the other examples given, the minimum sentence is imposed then the hands of the court are tied”.

 

55. It is the same fate which befalls a young offender too. The appellant in this case is said to be a young and first offender. The minimum punishment upon conviction for the offence of robbery which to all intents and purposes is considered a grave offence is fixed by law. The trial judge in his discretion imposed that minimum. The prayer for the reduction of that sentence is not tenable in law. The ground of appeal is dismissed.

 

56. In conclusion, the judgment of the trial judge is affirmed. And the entire appeal is dismissed.

 

(SGD.)

E. K. AYEBI

(JUSTICE OF APPEAL)

 

(SGD.)

G. TORKORNOO (MRS.),            I agree              G. TORKORNOO (JUSTICE OF APPEAL)

 

(SGD.)

A. M. DOMAKYAAREH (MRS.), I also agree         A. M. DOMAKYAAREH

(JUSTICE OF APPEAL)