KUMASI - A.D 2017
THE REPUBLIC - (Respondent)

CIVIL APPEAL NO:  H2/08/2016


On 30th November 2006, the appellant and one other were arraigned before the High Court, Kumasi on one count of conspiracy to commit crime, to wit robbery contrary to section 23(1) and section 149 of Act 29/60 and five counts of robbery contrary to section 149 of Act 29/60 as amended by Act 646 of 2003. In an amended charge sheet, Agya Osei @ Osei Wayo was added as the third accused, charged with the offence of dishonestly receiving property obtained by crime to, wit robbery, contrary to section 146 of Act 29/60.


The appellant herein and the other accused persons pleaded not guilty to the charges in the various counts against them. The facts of the case are that, the appellant and his accomplices two of whom were at large, formed a gang with the sole aim of robbing only Opel Astra Cars for sale. The idea was hatched by A3, Agya Osei, which appellant readily accepted. So apart from selling the idea to the appellant, A3 recruited a driver for the appellant and advised him on the modus operandi to adopt. A3 therefore stood by to reward the appellants and others for any car they succeeded in snatching for him. A3 was therefore the mastermind of the whole operation and appellant was the lead architect in all cases.


Here is the modus operandi advised by A3 which they adopted: For an operation, members of the group were three in number. The appellant would stop a taxi about town as a charter and direct the driver to a particular location/place, the accomplices would be waiting in hiding at an agreed spot between them. On reaching the spot, the appellant would order the driver to stop or manage to remove the ignition key of the car. The accomplices would then emerge from their hide out with guns and knives.


The taxi-driver is then ordered out of the car or pulled out if he resisted amidst threats of death and then assaults. In the process, the appellant and his accomplices would rob the taxi-driver of the car, his money and mobile phones. One Kwaku who is at large drives the cars to A3. Between 6th July and 9th August 2006, the appellant and his accomplices succeeded in snatching five (5) Opel Astra taxi-cabs as well as monies and mobile phones of the drivers. On 10/08/06, the Opel Astra taxi-cab in count 6 was seen parked in front of Kwadaso Police Station without the number plate. Somebody who knew the taxi-cab called the owner. The owner was able to identify the taxi-cab as his and immediately lodged a complaint with the police.


He was told somebody was seeking the release of the car to him and that person was second accused in the case. He was thereon arrested. A2 led police to arrest the appellant and subsequently A3, Agya Osei. Thereafter, the five cars which were all snatched from their drivers were retrieved. At an identification parade, all the victim drivers were able to pick out the appellant as the one who led the robbery of their cars.


At the trial which started on 13th March 2007, appellant was not represented by counsel. But the complainants in counts two and three who were the drivers at the time of the robbery gave evidence which sufficiently implicated the appellant. Their evidence was unshaken under cross-examination by the appellant.


On 8th May 2008, appellant asked permission of the court to change his plea. The permission was granted, his plea was re-taken and he pleaded guilty with explanation on all the counts. In his explanation, appellant confessed in detail the role each of them played in the robbery of each of the five taxi-cabs, the recipients of the cars, their reward and how they shared it. According to the court, the explanation of the appellant confirmed his involvement in the commission of the offence charged on each count.


The court proceeded to convict the appellant on his plea on the six counts. On the following day, the court sentenced the appellant to 25years imprisonment with hard labour on each of the six counts, all sentences to ran concurrently. It is against this sentence which appellant with the leave of this court on 16th December 2015 has appealed to us reduce. Yet ground one of the appeal is that “the sentence of the appellant was wrong in law”. And the second ground of appeal is that “the sentence was harsh and excessive”.


As I indicated immediately above, although the relief appellant sought in his petition is the reduction of the sentence, appellant in ground one is challenging the correctness of the sentence in law. If the sentence so imposed is wrong in law, then it should be declared null and void and then set aside but not reduced. In the submission of counsel for the appellant on the ground however, she argued against the conviction for robbery rather than the wrongness of the sentence in law. The learned State Attorney rightly pointed out the deviation or confusion in which counsel for appellant plunged herself in. Her submission that the sentence is not wrong in law on the facts is correct and I shall show so presently.


The appellant was convicted and sentenced for conspiracy to commit robbery and robbery. According to section 24(1) of Act 29/60 where the crime a convicted accused for conspiracy to commit has actually been committed, the punishment is the same as the punishment for the substantive crime committed. But where the substantive crime has not been committed, an accused convicted for conspiracy is liable to be punished for abetment. In this case, the appellant having been convicted for conspiracy to rob under section 23(1) and robbery under section 149, both of Act 29/60, he is liable to be sentenced on both counts as conviction for robbery.


Now by virtue of the Criminal Code (Amendment) Decree, 1969 (NLCD 398) section 6, robbery is categorized as a first degree felony. The punishment however is not stated. It is however stipulated in section 296(1) of Act 30 as amended by Act 261, section 5 that “where a criminal offence is declared by an enactment to be a first degree felony and the punishment for that offence is not specified, a person convicted of that offence is liable to imprisonment for life or any lesser term”. This is a specie of a military regime legislation meant to curb swiftly emerging criminal acts in the society then.


As regards the punishment for conviction for the offence of robbery, section 149 of Act 29/60 was amended in 2003 by the Criminal Code (Amendment) Act, 2003 (Act 646) 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 missile, the offender shall upon conviction be liable to imprisonment for a term of not less than fifteen years”.


Offensive weapon or missile under the amendment includes guns, knives or sharp objects employed in the commission of the offence. In this case, PW1 and PW2 who gave evidence for the prosecution before the appellant changed his plea stated that the accused had guns and knives with which they threatened them with death or harm. That being so, the punishment which the trial judge must in accordance with the law quoted upon conviction of the appellant impose is fifteen (15) years IHL.


But that is only the minimum in the circumstances and facts of this case. It would have therefore been contrary to the law if the trial judge had imposed a sentence lower than that minimum. However, the maximum sentence has not been provided in the law. It could be life imprisonment or any lesser term per section 296(1) of Act 30/60. That is left to the discretion of the trial judge to determine. On the authority of Haruna vrs The Republic [1980] GLR 189, counsel for the appellant conceded that the question of sentence is a matter of discretion for the court. The discretion, it is agreed is exercised on well-known principles. These principles are suitable for discussion underground two of the appeal.


As discussed above, the sentence imposed by the trial judge on the appellant on conviction for the offences of conspiracy and robbery has not violated any law. Ground one of the appeal as it stands is therefore not tenable. It is dismissed. I however need to comment on the submission itself of counsel for the appellant. That submission is on the appropriateness of the conviction of the appellant and not on the wrongness of the sentence as stated in the ground. The submission even if it is correct on the facts of the case, cannot be countenanced without an amendment of the said ground one of the appeal. But as I now proceed to show, the conviction of the appellant cannot be assailed or disturbed on any ground – either in law or on the facts.


From the beginning of the trial as the record shows, the appellant pleaded not guilty to all the charges laid against him. By that plea, he threw the onus of proof on the prosecution. That accords with the cardinal principle of our jurisprudence that the accused is presumed innocent until proven guilty or he pleads guilty. The prosecution then set about to prove the guilt of the appellant by calling two witnesses who were all complainants in the case.


For whatever reason, the appellant relieved the prosecution of the onus to prove his guilt when the appellant changed his plea of not guilty to guilty with explanation. It is true the appellant was not represented at the trial by a counsel and the reason why he decided to change his plea is not stated. The explanation the appellant gave in support of his plea of guilty has been recorded in three full pages. The explanation in the opinion of the trial judge is an absolute confession by the appellant of his involvement in the commission of the crime. And in accordance with the law, the trial judge convicted appellant on his own plea.


I gleaned from the submission of counsel for appellant that, based on the decided cases quoted and text-writers opinion she referred to, the appellant did not fully appreciate the procedure by the change of his plea to guilty with explanation or the plea of guilty is not unequivocal. And for that matter, the trial judge should have entered a plea of “not guilty” to compel the prosecution to prove its case.


Counsel for the appellant then posed the question whether an appellate court can set aside a conviction based on a plea of guilty before the trial court. She referred to the case of Zabrama (Alpha) vrs The Republic [1976] 1 GLR 291, in which Taylor J (as he then was) answered the question in holding 2 thus:


“If it could be shown that an appellant did not appreciate or understand the charge or procedure and thus pleaded guilty by mistake”.


There are other grounds upon which a conviction based on a plea of guilty could be set aside or quashed on appeal and I will show so later. But as provided in section 171(1) of Act 29/60, on arraignment of an accused on a charge before a court, the accused can plead either guilty or not guilty when asked to plead. The accused also has the right to keep mute and not to plead either way at all. In that case the court must enter a plea of not guilty for him and then embark on a full trial.


Specifically, there is no provision in the law on a plea of “guilty with explanation”. The acceptance of such a plea by the courts in my view has developed out of convention. For as stated by Taylor J (as he then was) in Harlley vrs Ejura Farms (Ghana) Ltd. [1977] 2 GLR 179 at page 214:


“In these courts we dispense justice in accordance with three and only three yardsticks: statute law, case law and well-known practices of our courts”.


I also hold the view however that, the practice of accepting pleas of guilty with explanation by the courts had some statutory basis in section 171(3) of Act 29/60 which provides that:


“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”


On the basis of this provision, a plea of guilty with explanation is recorded and acted on as appropriate after listening to the explanation.


I think the plea of guilty with explanation is an expression of our culture. In the courts, where an accused pleads guilty simpliciter, the court is not obliged to call for an explanation but in our culture, an explanation is called for, for any complaint against our conduct. The plea of guilty with explanation is therefore a carried over. Thus to ensure that the plea of guilty with explanation is unequivocal, the courts make sure that the explanation is recorded and the culpability of the accused is determined therefrom. It is so done because an accused may be an illiterate or lay and unlettered in the law and may after all not be guilty. Thus A. N. E. Amissah in his book Criminal Procedure in Ghana (1982 Edition) at page 109 stated:


“Quite often an accused pleads that he is “guilty with explanation”. This may actually mean a plea of not guilty when the explanation comes out or it may only mean that the accused is in fact guilty but has something to say towards the mitigation of punishment. The need for the court to record the explanation or other statement is clearly apparent”.


And Justice S. A. Brobbey in his book Practice and Procedure In the Trial Courts and

Tribunals of Ghana, page 65 paragraph 142 wrote:


“Whenever an accused person adds words to his plea of guilty, it becomes imperative that the trial magistrate or panel chairman takes pains to record the proceedings whatever he wishes to say by way of excuse, reservation, explanation, etc. This is because that record will reveal whether the accused is genuinely guilty but pleads in mitigation of punishment or would want to inform the court that he is not guilty but for some legally unacceptable reason he pleads that he is guilty. In the latter event, a plea of not guilty should be entered for him so the case will be tried”.


It is seen from the record in the instant case that the trial judge recorded in detail the explanation of the appellant – see pages 19 to 23. The explanation of the appellant neither raised a defence to the charge nor negatived the plea of guilty. The submission of learned counsel that the trial judge should have entered a plea of not guilty for the appellant to compel the prosecution to prove his guilt is completely contrary to the text of the learned writers she purported to rely on. In practice, an admission of a fact or issue needs no further proof. In accordance with the law, the trial judge was right to enter a plea of guilty for the appellant and to proceed to convict him.


In law, for a confession to be admissible in a judicial proceeding such as in the instant case, the confession must be made in compliance with section 120 of the Evidence Act, 1975 (NRCD 323) – that is it must be made voluntarily and in the presence of an independent witness. In this case the confession was in open court with the judge in attendance.


There is no suggestion by counsel for the appellant that the confession was involuntarily made in that the appellant:

(a) Did not appreciate consequences of the confession, or

(b) Was not fully conscious or mentally sound at the time he made the confession, or

(c) Was induced, threatened or promised to make the confession, or

(d) Made the confession under pressure exerted on him by a public official or some interested person in the outcome of the case.


That being so, the confession to the crime as revealed in the explanation of the appellant is legally admissible. That apart, as noted by the learned State Attorney, even in the absence of the change of plea of the appellant and his subsequent confession, the trial judge could have safely have convicted the appellant based on the evidence of PW1 and PW2 so far.


I again gleaned from the submission of counsel for the appellant that, a court should not convict an accused on his plea of guilty with explanation under any circumstance at all, even if the explanation amounts to a clear admission of the offence charged. It is my finding that there is no such provision or proposition in the Criminal Procedure Code, 1960 (Act 30).


It is also the case on behalf of the appellant that constitutional provisions in Article 19(2) (c), (e), (f) and (g) which are safeguards put in place to ensure a fair trial of an accused have all been ignored at the trial. I find this submission as a baseless allegation because there was no demonstration from the record of proceedings in what way the rights guaranteed the appellant in Article 19 have been ignored or violated at the trial. The conviction of the appellant I hold, was supported by the weight of evidence and was in accordance with law and as such occasioned no miscarriage of justice to the appellant.


In ground two of the appeal, it is stated that the sentence of 25 years IHL imposed on the appellant is harsh and excessive. Counsel for the appellant submitted that the trial judge has the discretion to impose any length of sentence which the law permits. But the personal circumstances of the appellant such as his age and previous or unblemished record should have been taken into consideration. Counsel also submitted that Article 14(6) of the Constitution was not taken into consideration when the trial judge imposed a sentence of 25 years IHL on the appellant.


The submission however failed to make mention of the nature of the offence committed as a vital factor which influence the length of a sentence. Ever since robbery was declared a first degree felony, it has always been considered as a grave or serious offence. And the punishment prescribed by law for a grave offence such as robbery had also always been punitive to the convict and deterrent as well as exemplary to others – see Adu Boahene vrs The Republic [1972] 1 GLR 20, CA. This court has never wavered from upholding that position of the law in all robbery cases which come on appeal before it.


In Kwashie vrs The Republic [1971] 1 GLR 488, three policemen in the line of their duty diverted smuggled goods in order to sell for private profit. On their appeal against sentence of seven years on the ground that as first offenders, the sentence was harsh and excessive, Azu Crabbe JA (as he then was) dismissed the appeal in the following words:


“Since the offence was of a very grave nature, the sentence must not only have been punitive but it must also have been deterrent or exemplary in order to mark the disapproval of society of such conduct by police officers”.


It is noted from that statement that, since every punishment is intended to serve a purpose, the interest of society must also be considered in imposing a sentence. Thus in the Kwashie case (supra), the learned judge cited several English authorities which show that in imposing a deterrent sentence, the individual circumstances of the accused, whether it be age, previous record, service or private domestic circumstances are irrelevant considerations.


In this case, although the appellant may be a first offender, he is an expert in car snatching not in the night but in broad day light. There is no evidence from his own explanation that he attempted to snatch a car and failed. The appellant therefore deserved no lenient treatment. This is because once the offence is grave, the punishment must also be severe in accordance with the law – see Frimpong alias Iboman vrs The Republic [2012] 1 SCGLR


The sentence imposed on the appellant will therefore not be disturbed or reduced on those grounds.


In the submission of the learned State Attorney, she made concessions for the reduction of sentence on those grounds – i.e. the personal circumstances of the appellant which the trial judge omitted to take into consideration. But as I have demonstrated, it will be contrary to law and practice to fault the trial judge in view of the grave nature of the offence.


The learned State Attorney also pointed out the lack of uniformity in the sentences on the three accused persons by the trial judge. In Abbot vrs The Republic [1977] 1 GLR 326, courts are enjoined to endeavour to achieve uniformity in sentencing where the accused persons committed a joint offence and stood on the same footing. From the record, the trial judge openly violated this principle. The appellant and A2 were charged with the same offences while A3 was charged with dishonestly receiving. While the appellant was sentenced upon conviction to 25 years IHL, A2 was sentenced to only 6 years IHL and A3 was sentenced to a fine of GH¢400.00 or in default, 6 years IHL.


The absence of uniformity in the sentences imposed arose because the trial judge abdicated his judicial duty in not evaluating the evidence on record at the close of the case of A2. From the record on page 43, the trial judge on 27/03/09 convicted A2 for conspiracy to rob and robbery. Before he could pronounce his sentence, A2 told him that he bought only one of the cars and he is guilty of that. Without looking back, the trial judge accepted A2’s plea, changed his conviction from robbery to dishonestly receiving and then imposed a sentence of 6 years IHL.


However, in the statement of the appellant, he stated that on one occasion when Kwaku their driver failed to turn up for the operation, one Slim and A2 joined him to snatch a car at Areeba area. At the trial, A2 gave evidence that a car he attempted to buy was seized by the police and that seizure led to his arrest and then the appellant. Clearly there is no such evidence on record as accepted by the trial judge. And after conviction of A2 on the charges of conspiracy and robbery, he had become functus officio in that respect. His unfinished duty was to proceed to sentence A2 on the charge he convicted him for.


In the case of A3, he also changed his plea from not guilty to guilty in course of the trial. This was after appellant has changed his plea, was convicted and sentenced. So appellant’s statement about A3 as the mastermind behind the whole operation and the receiver of the cars snatched was before the court. Based on the statement of the appellant, A3 should have also been charged for conspiracy to rob in addition to the charge of dishonestly receiving. For whatever reason the trial judge sentenced A3 to a fine of only GH¢400.00, is not stated but he subsequently sentenced A2 to 6 years IHL upon his admission that he received only one of the stolen cars.


In my view, the inconsistency in the sentences imposed is tantamount to a travesty of justice. In order to right the wrong, the learned State Attorney should have cross-appealed against the sentences imposed on A2 and A3 rather than advocate the reduction of the sentence of the appellant. The State takes up the responsibility of prosecuting criminal cases on behalf of the complainant in order to protect the interest of the larger society. State Attorneys must always bear that in mind in the discharge of their duties as prosecutors.


In my view, it is not justified to argue that the failure of the trial judge to apply the law properly to A2 and A3 should enure to the benefit of the appellant who was convicted and sentenced in accordance with the law. It has to be borne in that within just one month, the appellant led his accomplices to snatch five taxi-cabs. By their actions, appellant and his accomplices deprived car owners of their property and denied the drivers their means of livelihood. The appellant in my view does not deserve the sympathy the learned State Attorney showed him, although the cars were retrieved.


But the accusation that the trial judge failed to take into consideration the provisions of Article 14(6) in the sentence imposed is legitimate. It is provided therein that where a person is convicted and sentenced to a term of imprisonment for an offence, any period he has spent in lawful custody before the completion of his trial shall be taken into account in imposing the term of imprisonment.


What the provision means in its application is that it must appear on the record of trial judge that the period spent in custody before the completion of the case and conviction was duly considered in imposing the sentence of the particular duration. The manner and form the period spent in custody is stated or expressed is immaterial – see the dicta of the Honourable Chief Justice in Bosso vrs The Republic [2009] SCGLR 420 at holding 2.


On perusing the judgment of the trial judge, the record shows that no attempt was made to comply with this constitutional provision meant to give a relief to a convict. From the record, appellant was first arraigned before the court and remanded in custody on 30th November 2006 and sentenced on 9th June, 2008. The appellant was therefore in custody for about one year, six months before the completion of the case.


Since an appeal is by way of re-hearing and the appellate court is permitted to make orders which the trial court should have made as it deems fit in order to do justice, we will reduce the sentence of 25 years IHL to 231/2 years IHL. Subject to that variation, ground (b) of the appeal is dismissed, so also is the appeal as a whole.







G. TORKORNOO (MRS.),    I agree         G. TORKORNOO




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