IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2017
KWASI ADU @ ETSEAFOO - (Appellant)
THE REPUBLIC - (Respondent)
DATE: 17TH MARCH, 2017
CRIMINAL APPEAL NO: H2/19/2015
JUDGES: VICTOR OFOE J.A. (PRESIDING), FRANCIS KORBIEH J.A., L. L. MENSAH J.A.
MATHEW AMPONSAH (CHIEF STATE ATTORNEY) WITH HIM AMERA SARPONG (ASSISTANT STATE ATTORNEY) FOR THE REPUBLIC/RESPONDENT
C. K. HOEYI FOR THE APPELLANT
L. L. MENSAH, J.A.
This is an appeal launched by the Appellant against the ruling of the High Court, Accra dated 31st March 2015 in respect of an application for bail which the High Court had refused.
The facts which engendered this appeal are as follows:- On 23rd July 2008 at 4.30 a.m the Appellant herein Kwesi Adu and one Yaw Anim hired one Francis Owusu a taxi driver from Adukrom to Accra under the pretext of taking an uncle to Adukrom who had arrived from abroad. On a section of the Larteh road, the Appellant drew a sharp knife, and ordered the driver to hand over the keys of the car. With a minimum resistance, the Appellant inflicted knife and gunshot wounds on the taxi driver. The victim bled profusely and fell unconscious. They tied the victim and threw him into a near-by bush. The Appellant who is a professional driver drove the Suzuki stolen taxi with registration No. GS 3515 Y to Jericho, a suburb of Ashiaman and offered same for sale in the sum of GH₵2,500. Due to the undervalue of the price of the taxi, a concerned citizen who became suspicious, alerted the security men who arrested the Appellant with his accomplice and sent them to the Regional C.I.D. Tema, and later processed and charged them with the offence of conspiracy to rob and robbery.
During the trial of the Appellant and his co-accused, the trial Judge at the Circuit Court was elevated to the High Court and later transferred to High Court, Winneba. The Appellant and the other accused were to open their defence. In course of the trial, the Appellant was admitted to bail on account of a debilitating sickness backed by a medical report. After the bail, he was said to cure himself by herbal medicine.
While on bail, the accused was said to fail to present himself for trial. He was caught in another criminal offence which is an attempt at car snatching, and arraigned at the Circuit Court, Odumase Krobo. On account of his abuse of the bail granted him, the High Court refused to admit the Appellant to bail. It is against the refusal to admit the Appellant to bail that is the reason Appellant is in this court to contest the refusal of the bail.
The Appellant has itemized five grounds of appeal. These are:
(1) The refusal of the High Court Judge to grant my lawyer’s motion for the grant of bail to me was wrong in law.
(2) The High Court Judge erred in law when he refused to grant me bail because he failed to take cognizance of the fact that my co-accused in the case, Yaw Anim a.k.a. Oyiee was in November, 2013, discharged and released from prison custody by the Justice For All programme.
(3) The High Court judge erred by refusing to grant me bail when he ignored the medical Report issued from the Police Hospital evidencing my poor state of health.
(4) The High Court judge seriously erred in law by dismissing my lawyer’s motion for the grant of bail to me because the said High Court judge failed to recognize that the undue delay of my trial by the Circuit Court was occasioned by the inability of the Judicial Service authorities to procure a judge for the trial Circuit Court.
(5) The dismissal of my lawyer’s motion for the grant of bail to me occasioned substantial miscarriage of the justice.
In his argument on ground one of this appeal which is that the refusal of the High Court judge of my lawyer’s motion for grant of bail to me was wrong in law, learned Appellant’s counsel submitted inter alia, that the Appellant “was re-arrested for not appearing in court on one occasion when the Appellant because of his poor health condition got mixed up with the next adjourned date of the court” seems not to be borne out by the Record of Appeal. Or that submission is not factually correct.
The argument of the unreasonable delay which is a constant refrain in this appeal is belied by the fact that the learned trial court refused the bail because the Appellant abused the bail condition within the purview of section 96(5) (d) of the Criminal and Other Offences (Procedure) Act, 1960. It is provided thereunder as follows:-
96(5) (d) A court shall refuse to grant bail if it is satisfied that the Defendant
(a) may not appear to stand trial or
(b) may interfere with a witness or the evidence, or in any way hamper police investigations, or
(c) may commit another offence
(d) is charged with an offence punishable by imprisonment exceeding six months which is alleged to have been committed while the Defendant was on bail.
In the light of the above statutory provision under section 96(5) (d) which the Appellant was said to have breached and which rightly informed the trial judge’s decision, why is the Appellant crying foul? I ask this question because in Exhibit “PP 1” on page 14 of the Record of Appeal, the Appellant on the 18th day of January 2013 was arraigned before the Circuit Court, Odumase Krobo before His Honour Asmah A. Asiedu (as he then was) for attempt to commit crime, to wit car snatching. The accused was admitted to bail in the sum of GH ₵10,000.00. Clearly, the Appellant had breached section 96(5) (d) of the Criminal and other offences (Procedure) Act aforesaid.
In our opinion, the trial judge has rightly refused bail to the Appellant and we have no good reason to disturb his finding on this ground of the appeal. Same is hereby dismissed. What this means is that all the authorities referred to by the Appellant’s counsel such as Gorman & Others vs. The Republic (2003-2004) SCGLR 784; Gyakye & Another vs. The Republic (1971) 2 GLR; Dogbe vs. The Republic (1980) GLR 679; and Brefor vs. The Republic (1980) GLR 677 are not germane to this case.
I now come to the second ground of appeal. This is that the High Court Judge erred in law when he refused to grant me bail because he failed to take cognizance of the fact that my co-accused in the case Yaw Anim a.k.a. Okyiee was in November, 2013 discharged and released from prison custody by the Justice For All Programme.
On this ground, learned Appellant’s counsel contended that the Appellant and his co-accused Yaw Anim have been jointly charged on two counts of conspiracy to commit crime, to wit conspiracy to rob and robbery. That the said Yaw Anim who went to Nsawam prison on a different warrant was discharged under the benefit of the Justice For All Programme in November 2013. However he Appellant remains in custody. That the trial judge “erred in law by not using his discretion judicially to grant bail to the Appellant as well”.
The above argument on ground 2 is misplaced because the fortune and circumstances of the Appellant and Yaw Anim, his former co-accused, are not the same. Indeed, the Record of Appeal shows that no bench warrant was issued against the said Yaw Anim. Secondly there was no involvement in any other crime such as the involvement of the Appellant on 14th day of November 2012 at about 9.00 p.m in the attempted car snatching. Indeed, if the Appellant believes that his case is similar to that of the said Yaw Anim, he could also try his hands on the Justice For All Programme. The appeal on this ground also fails.
The third ground of appeal is that the High Court Judge erred by refusing to grant me bail when he ignored the Medical Report issued from the Police hospital evidencing my poor state of health.
On this ground Appellant’s counsel submitted that while appellant was in custody, he became ill, and he was admitted to the Police hospital in Accra where he was operated upon, and that the surgical operation left him crippled. Counsel refers to the case of Okoe v. The Republic (1976) 1 GLR 80.
We have taken a look at the case of Okoe v. The Republic (supra) in which Taylor J (as he then was) in holding 4, held that even though Applicants contention that because of his age and state his health detention in prison would affect his health, was not a proper ground on which bail could be granted, bail might very well be granted if the detention in custody was the cause of the ill-health.
The scenario in the case of Okoe v. The Republic is quite different from the situation in the instant case. The Appellant swore on oath (whether by he himself or the wife or counsel, it does not change the equation) that he received herbal treatment and he was fully healed of his paralysis which occasioned his admission at the Police Hospital. Indeed it is surprising that the Appellant whose Medical Report on page 8 of the Record of Appeal from the Police hospital pointed him as one who was almost a human vegetable, regained his health to the paint of hiring a taxi at 9.00 p.m. on that 14th day of November 2012. What I mean is that the Medical Report was dated 4th August 2010. At the time of swearing an affidavit on 21st October, 2015 for her husband, the Appellant herein, Patience Paddy in paragraph 13 of the said affidavit deposed that “the Applicant recovered after submitting to herbal treatment after his release”. It is a gross misleading of the court for the Appellant to claim benefit under Medical Report from the Police hospital six years after the said report, and after he had fully recovered from the said sickness of inter alia (a) “Spondylitis (b) Sarcolitis, (c) Damages to the bone margins of the spine”. In the case of Okoe v. The Republic (supra) the Appellant made the application for bail while sick in custody and not after he had fully recovered. This ground of the appeal being premised on falsehood about the Appellant’s supposed sickness, same is hereby dismissed. This is because there is no iota of truth in appellant’s sickness. This is because as at today there is no medical evidence of Appellant’s sickness, because he is not sick anyway.
Ground 4 of the appeal is that the High Court Judge seriously erred in law by dismissing my lawyer’s motion for the grant of bail to me because the said High Court judge failed to recognize that the undue delay of my trial by the Circuit Court was occasioned by the inability of the Judicial Service authorities to procure a judge for the trial Circuit Court.
In this ground, Appellant’s counsel contended that there are two official letters of the Judicial Service which show that the Judicial Service cannot procure a judge for the speedy trial of the Appellant and his co-accused. The High Court judge erred in the circumstance in refusing to grant the Appellant bail.
We have examined the “to letters” referred to above, one from the Judicial Secretary to Justice C. A. Wilson and the other a memorandum from the Circuit Court Registrar to the Chief Justice. We think that these two letters do not change the equation of the fact that the Appellant when admitted to bail, jumped the bail, refused to come to court, and ended up being arrested for an attempted car-snatching crime enterprise. We have no reason to allow the appeal on this ground.
In ground 5 of this appeal, the appellant re-cycled the old and tired complaint that his co-accused was discharged by the Justice For All programme on the grounds of unreasonable delay, while he appellant was re-arrested on or about 11th April 2013 for failing to appear in court on the next adjourned date.
As touched on earlier in ground one of this appeal, the learned trial judge had legitimate grounds to refused bail to the Appellant because he breached section 96(5) (d) of the Criminal and Other Offences (Procedure) Act, 1960 as aforementioned in our consideration of ground 1 of this appeal.
We have examined the appeal and we think that the Appellant has not made a case to warrant the grant of bail. What this means is that the appeal must suffer dismissal and same is hereby dismissed.