F.G. KORBIEH, J.A.

On page 3 of the ROA, the appellant (as the 2^nd accused), George Ayitey @ George Johnson Layitey (as 1^st accused), Mawuli @ Shortie (as 3^rd accused) Abdul Razak @ Zak (as 4^th accused who was at large) and Gedo (as 5^th accused) were recorded as being arraigned before the High Court, Accra and charged with the offences of conspiracy to commit robbery and robbery. The 4^th accused, Abdul Razak alias Zak was at large and understandably not in court. But there was no explanation as to the whereabouts of the 5^th accused, Mohammed Gedo. So even though there were supposed to be four accused persons present in court that day, only three of them were charged: all three pleaded not guilty to the two counts of conspiracy to rob and robbery. The brief facts of the case were given by the prosecution as follows: the three accused persons, i.e. the appellant, George Ayitey and Mawuli, armed with a pistol supplied by Gedo, had robbed the station manager of the Glory Filling Station at Osu in Accra, George Sackey, of an amount of GHC34,170.00 after the appellant and George Ayitey had entered the filling station whilst the rest kept watch as look-outs. They had asked the attendants to lie down on the ground whilst they broke into the store-room, collected the amount and sped away in a car. They later admitted their offence in their statements to the police and before an independent witness. The three were therefore being tried summarily for the two offences of conspiracy to commit crime, to wit robbery contrary to section 23(1) and 149 of the Criminal Offences Act, 1960 (Act 29) and robbery contrary to section 149 of the Criminal Offences Act, 1960 (Act 29).

On the first day of the trial, this is what transpired in court:

“By Court: Mr. Ayittey I told you that you are involved in several cases in this court.

1^st Accused: My Lord, only three (3) cases.

Prosecution: Three (3) cases, three cases is only?

By Court: Prosecution?”

After this rather unprofessional opening setting, the prosecution called the Glory Oil Station manager as its first witness. His evidence was that he was in his office around 6:45 in the morning when suddenly two men, one holding a gun, entered his office and demanded the keys to the safe; that they removed all the money from the safe and then locked him and the attendants in the office and bolted away. He could not identify the people who robbed him. In cross-examination, he said he did not know the appellant. As it turned out, PW1 was actually the main witness for the prosecution. PW2 was called to tender the witness statements and other exhibits. He was not even the person who investigated the case. The police officer who investigated the case had gone on retirement. PW2 accordingly tended the statements of the accused persons, including that of the appellant in court. The “charge statement” of the appellant was read in open court even before it was tendered as exhibit D. (See page 15 of the ROA) When it come to the turn of the appellant to cross-examine PW2, part of the cross-examination went as follows:

“Q. According to what you read before this court you mentioned one Gardo whom you mentioned that he is my friend, he has been discharged are you aware of that?

A. I am not aware and I don’t know him.

Q.  But did you hear from my lord that Gardo has been discharged?

A. No I did not hear.

Q. But you were not here?

A. I am here to do the work that I have come to do so as you are saying I am not aware of that?

Q. I am putting it to you that Gardo has been discharged and he is my friend as you said it and he has been discharged?

A. I don’t know.

………………..

Q. So how do you fabricate this story and tell this court?

A. The statement you gave to him is it a fabrication?’

Q. What is the evidence that I gave this statement?

A. What you gave is what I read to the court.

Q. Who was the witness during the time of giving this statement?

A. I am saying that I did not take statement from you. Mr. Agyei who took the statement is from you is on retirement. So I have been asked to come and tender on his behalf whilst (sic) I know his handwriting.

…………………………..

Q. Are you aware that a complainant came here and said that he doesn’t know me and I am not among the people who robbed him?

A. I am not aware of that.

Q. Then how can you get the truth if you don’t know anything about the case?

A. It is not paper, it is the statement you gave to the Police.”

Generally speaking, this typified the line of cross-examination of the other two accused persons.

Indeed the 3^rd accused craved the indulgence of the trial court to invite Inspector Agyei (on retirement) to court so that he could he “as him detailed questions” concerning the taking of their statements. Not only was this request ignored, it also brought to an end the case of the prosecution, at least on the record. The next thing was that the accused persons were asked to open their defence. And then all was blank on the record until we have the judgment delivered against four accused persons. In that judgment the trial judge claims that the first three accused admitted in their statements, exhibits A, C, and E that they took part in robbing PW1 of an amount of GH⊄34,170.00 at his fuel filling station at Osu in Accra. He then proceeded to sentence each of them to 30 years imprisonment on each count, sentences to run concurrently.

It is this judgment that the appellant has appealed against on three grounds which are:

The conviction and harsh sentence imposed on the appellant are unmerited, hence his appeal against the conviction and sentence.

The appellant was exonerated during the identification exercise in open court during the trial by the complainant who testified that he was among the gang that came to rob him.

The appellant was picked up only for him to assist in tracking down one Ibrahin Gedo which he willingly did.

The appellant was in his shop at Spintex Road and nowhere close to Osu at the time of the alleged robbery.

There was no evidence linking the appellant to the said crime.

Further grounds will be added upon receipt of the record of appeal.

Before we proceed to deal with these grounds of appeal, there are a number of preliminary matters that we wish to point out first. The first is the rather lackadaisical approach that seemed to characterize the proceedings in this case. As pointed out earlier, the charge sheet had five names on it but eventually only three people were tried. The significance of this is that the appellant pointed out in his cross-examination of PW2 that the 5^th accused on that charge sheet, Gedo, had been discharged, apparently in another or different trial. But how did that happen? And why did Gedo’s name still continue to be on the charge sheet? Secondly, the proceedings were very haphazard and parts even missing. For instance the whole of the recording of the defence of the accused persons is missing from the ROA. Thirdly and probably most seriously, this appeal was put before this panel as long ago as 21/2/2017 and one would have expected that it would have been dealt with long before now, especially seeing that it is not a particularly long or complicated case. The reason why it has been with us for so long is that we realized very early on that the judgment was based almost entirely on the alleged confession statement of the appellant which he had vehemently denied both before the trial court and before this Court. It was therefore our bounden duty to adjourn the case, simple as it looked, long enough for us to try and locate the original docket to see if the confession statement was in it. At the next adjourned date, we still had not been able to find the original docket and the trial judge himself was on sick leave so we had to take another adjournment. Even as at today, with our best efforts, we simply cannot trace that docket. Fortunately for us, we have authority that can assist us resolve the legal issue created by this kind of lacuna. In the case recent case of John Bonuah @ Eric Annor Blay v. The Republic (unreported) Criminal Appeal No. J3/1/2015 dated 9^th July, 2015 the Supreme Court faced a very similar problem and this is what Wood, C.J. (as she then was) said:

“Generally, the responsibility of keeping records in safe and proper custody and producing them on demand rests on the Registrar of the relevant court. The guaranteed constitutional right to a fair trial within a reasonable time under article 19(1) of the 1992 Constitution ought to be generously and purposively construed to include a fair appeal hearing within a reasonable time. This right, on demand and subject to the fulfillment of all the necessary legal and administrative requirements, includes an untrammelled access to the full record of the trial proceedings. We state this as the standard rule, as clearly, this right may be lost or curtailed through an appellant’s own criminal actions…In the final analysis, the legal question we identified as being pertinent for our consideration is this. In a criminal appeal against conviction or sentence, what judicial out comes are open to an appellate court seized with an incomplete trial proceedings or records, on account of all or a significant segment of the trial records being lost or completely destroyed? Stated differently, what reliefs is an appellant entitled to? Does it exclude or include a setting aside of the decision, that is, an acquittal, on the basis that the general rule that an impugned decision is prima facie correct until otherwise declared, cannot be made to apply under those clearly defined circumstances where the records, through no fault of the appellant, are irretrievably lost or destroyed?”

The Supreme Court went on to emphasize the Court’s duty to uphold the two competing rights of the appellant’s constitutional right to a fair and just hearing on the merits as well as its duty to keep the streams of justice pure by protecting them from manipulation and abuse such as being overrun by “unscrupulous people acting in collusion with dishonourable court officials to pervert its course.”

What we propose to do is to hold, on the authority of John Bonuah @ Eric Annor Blay v. The Republic (supra) that the judgment appealed against cannot be presumed to be right or correct since it is very clear from the record that the records were lost through no fault of the appellant’s in the instant case. We accordingly hold that the judgment in the instant case can and ought to be impugned because any loss of records has nothing to do with the appellant. This therefore brings us back to the consideration of the case itself and grounds of appeal. Even though in the Notice of Appeal as many as five grounds of appeal were listed, in arguing the appeal counsel for the appellant argued only three and is therefore presumed to have abandoned the other two. On our part, we shall deal with the ground dealing with the conviction of the appellant first and thereafter see if there is a need to proceed any further.

It is trite knowledge that the prosecution, in order to secure a conviction in a criminal trial must prove the guilt of the accused person beyond a reasonable doubt. This is provided for in section 13 of the Evidence Act, 1975 (NRCD 323). In the case before us, the appellant faced two counts of conspiracy to commit crime, to wit robbery and robbery. These two offences are provided for in sections 23(1) and 149 of the Criminal Offences Act, 1960 (Act 29) respectively. The only evidence that the trial court depended on to convict the appellant was exhibit D, his so-called confession statement. But the appellant denied that exhibit D was a voluntary confession statement or even his statement at all. We have already quoted in extenso his cross-examination of PW2 to that effect. In the case of Frimpong alias Iboman v The Republic [2012] SCGLR 297 the Supreme Court held (in holding 4) that the following procedure must be complied with to give validity to a confession statement and make it admissible in law: if the declarant of the statement made the statement while arrested, restricted or was detained by the State, then the statement would be admissible only if: (i) it was made in the presence of an independent witness, (ii) the independent witness must understand the language of in which the declarant , i.e. the appellant in the instant case, had spoken, (iii) the independent witness could also read and understand the language in which statement had been made; (iv) whenever the statement was in written form, the independent witness should certify in in writing on the statement as follows: “that the statement was voluntarily made in his presence and that the contents were fully understood by the accused”; (v) where the declarant was illiterate or blind, the independent witness should carefully read over and explain to the accused the contents of the statement before it was signed or marked by the accused.” As said earlier, we could not lay our hands on even a photocopy of exhibit D to know if indeed what the appellant told the police in his statement amounted to a confession of guilt. We were therefore left in the dark and in doubt. A fundamental principle of our criminal jurisprudence is that every doubt must be resolved in favour of the accused or in this case the appellant. So what we are left with is the evidence adduced before the trial court. Going by the criteria laid down by the Supreme Court in Frimpong alias Iboman v The Republic (supra) we hold that the appellant either did not make a confession statement or if he did, it did not meet the standard set down in the case of Frimpong alias Iboman v The Republic (supra). Since there is no way that that evidence can ground a conviction for either conspiracy to commit crime, to wit robbery or robbery, we hold further that the prosecution failed to adduce the necessary cogent evidence to prove the guilt of the appellant beyond reasonable doubt. Even the Senior State Attorney, counsel for the Respondent, in her written submission, conceded that PW1 could not identify the appellant or the other accused persons as the people who robbed him. “In sum, the identification of the appellant was short of the standard required in law” were her own words. She again conceded that from the records, there were no indications as whether there were certifications of an independent witness being present when the statements were being taken. In other words, the Senior State Attorney has made two very important concessions that inure to the benefit of the appellant: one is as to the invalidity of exhibit D and the other is as to the seriousness of the doubt concerning the proof of the identity of the appellant. We would have been very happy to have congratulated her if she had been courageous enough to throw in the towel completely. We accordingly allow ground 1 of the grounds of appeal and hold that the conviction of the appellant was therefore seriously flawed and wrongful in law.

Given the fact that ground 1 succeeds, grounds 2 and 3 have been rendered otiose and need no further consideration.

In the result, we uphold the appeal in its entirety. We accordingly hereby reverse the conviction of the appellant and hereby order his immediate release from prison custody.