IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2016
HAMZA IBRAHIM -(Plaintiff)
THE REPUBLIC - (Defendant)
DATE: 22ND JANUARY, 2016
CASE NO: CRAP/01/16
JUDGES: ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT
SARFO GYAMFI FOR APPELLANT
NANA AMA DANKWAA KESSEY (ASSISTANT STATE ATTORNEY) FOR REPUBLIC
The Appellant herein was arraigned before the Circuit Court, Kumasi on a charge of causing unlawful harm contrary to section 60 of the Criminal and Other Offences Act, 1960, Act 29. The particulars of offence were that he intentionally and unlawfully caused harm to one Awudu Issaka.
He pleaded not guilty to this charge and after a full trial, he was convicted and sentenced to 10 years imprisonment with hard labour. Aggrieved by the said conviction and sentence, the appellant brought the instant appeal to set aside the said conviction and sentence.
GROUNDS OF APPEAL.
The Judgment is against the weight of the evidence on record
The Learned Judge failed to give weight to the statutory defence of self defence as alleged by the Prisoner.
The facts are quite simple and straight forward. At about 7:00pm on 28/05/2013, a misunderstanding ensued between the Appellant and the Complainant at Adukrom but the same was brought under control by onlookers. Not satisfied with the turn of events, the appellant went home , brought out a sharp cutlass , engaged the Complainant in a fight during which he inflicted deep multiple wounds on the Complainant's neck, head, left leg and his five fingers. The Appellant was the first to lodge a complaint at the police Station when the complainant was in a coma and had been admitted at the Komfo Anokye Teaching Hospital, Kumasi. The Appellant was later arrested on 05/06/13 and he admitted the offence in his caution statement.
I must say that Counsel for the Appellant and the Learned Assistant State Attorney for the Republic failed to file their respective written submissions as ordered by the court on 04/11/2015. I will therefore proceed to peruse the record of proceedings to determine this appeal.
The first ground of appeal was not properly formulated. The proper rendition ought to be " The verdict is unreasonable having regard to the evidence". Under his ground of appeal, the Court is enjoined to look at the evidence as a whole to see if the trial judge adequately evaluated the evidence on record before making a finding that the prosecution had proved a case of causing unlawful harm against the Appellant.
What are the elements which constitute the offence of unlawful harm? This can be ascertained from the plain meaning of section 69 of the Criminal and other Offences Act, 1960, Act 29 which states:
“A person who intentionally and unlawfully causes harm to any other person causes a second degree felony"
From the above, the constituent elements are that the harm caused must not only be intentional, but also unlawful. For an act to be intentional, there must be evidence that the perpetrator deliberately caused the same or ought to have known that his action would result in that act. These are adequately provided for under section 11 of Act 29. Section 11(3) is of relevance to the facts of the instant case. It states:
A person who does an act of a kind or in a manner that, if reasonable caution and observation had been used, it would appear to that person
(a) that the act would probably cause or contribute to cause an event, or
(b) that there would be great risk of the act causing or contributing to cause an event, intends, for the purposes of this section, to cause that event until it is shown that that person believed that the act would probably not cause or contribute to cause the event, or that there was not an intention to cause or contribute to it.
At page 4 of the record of proceedings, PW1 who was the victim gave the evidence below and which was accepted by the trial Judge:
"... The accused stopped me and demanded to know why we were accusing him of stealing our white necklace. Suddenly the accused pulled me and started slashing me with a cutlass. He first slashed my leg, causing me to fall down in the process, he tried to slash my neck and i used my hand to block same and that also resulted in another cut. He also slashed my finger in the process. Accused threatened to kill those around who tried to come to my aid...".
The prosecution also relied on the investigation and charge cautioned statements voluntarily given by the Appellant in support of their case. These are exhibits D and E respectively, and the Appellant relied on exhibit D in exhibit E. The statement is as follows:
...On 28/06/13 at about 7pm, Complainant Awudu Issaka's girl friend by name Emaladi was buying fried rice at road side Mangoase, Adukrom whilst I was chatting with her. After Emaladi had received her food and I turned to go complainant approached me and held my dress. People came and separate complainant from me. I went home. Later around 8pm remembered I left my blue tooth at the food seller's joint so I went to collect
it. Whilst I was standing there, complainant came and held my dress again that I should follow him to his master but I refused. Complainant removed a cutlass from his dress and inflicted cutlass wounds on my left hand, wrist and two knees. In the process of the struggle the cutlass fell down and I too took and inflicted cutlass wounds on complainant twice. The incident did not happen because of a silver chain as complainant allege but rather it was because of a lady."
From the evidence adduced by the prosecution witnesses, particularly the appellant's own admission in exhibit D, the trial judge found that the appellant set out to inflict and actually inflicted the cutlass wounds on the complainant. Certainly, when the appellant repeatedly slashed the complainant with the cutlass, he ought to have known that the complainant will sustain serious injuries, and he in fact sustained such injuries as shown by the medical report, exhibit B.
The second leg is whether harm caused was unlawful? The law is that where there is no legal justification for causing harm to another person, the same is unlawful. The grounds for which harm may be justified are set out under section 31 of Act 29, which the trial judge considered.
At page 5 of the judgment, the trial judge quoted section 31(f) of Act 29 which states thus:
Force may be justified in the case and in the manner and subject to the conditions , provided for in this chapter, on grounds of necessity for the prevention of or defence against a criminal offence."
Before making a finding as regards the justification or otherwise of the harm caused to the complainant, the trial judge sought to find out whether the Appellant acted in self defence as his evidence suggests.
The circumstances under which the defence of self defence would come into operation are these:
First, there must be evidence that the attack was in progress. See Anguyan v The Republic ( 1992-93) GBR 997; State v Ampomah (1960)GLR 262 , SC.
In Republic v Anguyan, referred to above, the court found from the evidence that at the time the Appellant slashed the deceased, the latter had fallen to the ground and had become immobilized and disarmed. The attack had ceased and there was no need for the appellant to inflict the mortal wound.
Second, it must be shown that there was no reasonable means of defending one's self. See R v Julien ( 1969) 1 WLR 839, CA.
Third, it must be demonstrated that the force used, or harm caused was not excessive i.e. the force or harm must be commensurate with the nature of force used or harm caused by the attacker. See Nartey v The Republic (1982/83) GLR 788, CA; Adu v R (1954) 14 WACA 462.
In Adu v R, the Appellant killed a guard who chased after him to effect an illegal arrest. The extent of force used in resisting the arrest resulted in the death of the guard. The court held that the force used in resisting the arrest was excessive.
When the first two grounds have been proved, the court must critically study the facts and the evidence to determine whether the harm caused falls within the prescribed limits. This is where section 32 of Act 29 comes in.
Section 32 General Limits of Justifiable force or Harm.
Although there may exits a matter of justification for its use, force cannot be justified as having been used in pursuance of that matter
(a) which is in excess of the limits prescribed in the section of this chapter relating to that matter or
(b) which extends beyond the amount and kind of force reasonably necessary for the purpose for which force is permitted to be used.
In deciding the extent and reasonability of the harm, the court must examine the reasonableness of the action from the perspective of a person facing the sort of attack which the accused faced. For instance, was the attack likely to result in the accused being killed? Did the accused act honestly and instinctively for purposes of saving his life? If answers to these questions are in the affirmative, then the courts will be slow in finding that the force used was unnecessary or unreasonably excessive.
In the present case, the trial judge found at page 6 of the judgment that from the evidence before him, even if the accused person's story that he acted in self defence were true, the harm caused to the complainant was unnecessary because at that time, the knife had fallen from the hands of the complainant. At that point, the Complainant had been disarmed. That notwithstanding, the accused inflicted the harm complained of on PW1 which resulted in his admission at the hospital for one month, three weeks.
The trial judge concluded at page 6 of the judgment thus:
“granted that it was PW1 who was the first to attack the accused at all, the force used by the accused in the circumstances of this case was too excessive."
He then rejected the defence put up by the accused person, found him guilty of the offence of causing unlawful harm and convicted him.
The trial judge cannot be faulted on his analysis of the evidence and the conclusions reached. His findings and conclusions are clearly supported by the evidence on record. Accordingly, the first ground of appeal fails.
The law on reasonable use of force in self defence was adequately considered and the trial judge's finding that the Appellant could not avail himself of that defence is rightly supported by the evidence. Therefore, the second ground of appeal has no merit. That also fails.
Is there any justification for interfering with the sentence imposed on the appellant? The offence of unlawful harm under section 69 of Act 29 is a second degree felony. The punishment for such crimes is provided for under section 296 (2) of The Criminal and Other Offences Procedure Act, 1960, Act 30 thus:
Where a (2) Where a criminal offence which is not an offence mentioned in subsection (5), is declared by an enactment to be a second degree felony and the punishment for that offence is not specified, a person convicted of that offence is liable to a term of imprisonment not exceeding ten years.
From his notice of appeal, the Appellant prayed the court to set aside the conviction and sentence as same is harsh, excessive and erroneous in law.
The sentence imposed on the appellant can be found at page 8 of the judgment of the Circuit Court. In passing sentence, this is what the trial judge said:
Notwithstanding the fact that the accused is a young offender, I shall sentence him to ten (10)years I.H.L. to serve as a deterrent to future offenders.
A trial judge has a discretion in passing sentence. Like any other judicial discretion, it must not be exercised capriciously. The catch is that the sentence must fall within the legally permissible maximum, bearing in mind the basic principles of punishment, as well as the existence or otherwise of mitigating or aggravating circumstances.
A case in point is BANDA V THE REPUBLIC ( 1975) 1 GLR 52 where the appellate court held ( head note 5) as follows:
The exercise of the power of sentencing lay entirely within the discretion of the trial court, and provided the sentence fell within the maximum permitted by the statute creating the offence and the trial judge duly considered those matters that should go in mitigation of sentence, an appellate court should not disturb the sentence only because it would have felt disposed to impose a lighter sentence if it had tried the case at first instance..."
In the above case, the appellate court had reason to interfere with the sentence imposed on the Appellant because the trial judge had failed to take cognizance of the fact that the Appellant had been of good behaviour for at least five years after his conviction for a similar offence. There is no record from the proceedings in the present case that the Appellant herein has ever been convicted of a similar offence. That ought to have gone into mitigation but the trial judge failed to consider the same.
Bearing in mind the provisions of section 296(2) of Act 30, the ten years sentence imposed on the Appellant herein is right in principle. However, the existence of mitigating factors such as his youthful age( 19years at the time of conviction), and the absence of evidence of past conviction for a similar offence, the ten years maximum sentence imposed on him was manifestly excessive.
As was held in ODONKOR V THE REPUBLIC (1967) GLR 690, CA,
The High Court will not in ordinary circumstances interfere with the discretion exercised by the trial court, unless the trial court has acted upon a wrong principle or overlooked some material facts or factors, or unless the sentence is so manifestly excessive in view of the circumstances of the case as to be unjust.
As a young offender, a long period of incarceration will make him worse off. He is likely to come out of the prisons hardened and more prone to commit other offences. He has had his first brush with the law and justice demands that he be given a second chance to reform his life. A period of incarceration which is reasonably long will serve the deterrence purpose which the trial judge had in mind. Put differently, this aim could have been achieved without the imposition of the maximum punishment, looking at the circumstances of this case.
I will be guided by the observation made by the Supreme Court in Frimpong alias Iboman v The Republic (2012) SCGLR 297 (holding (7) thus:
"It was generally accepted that, 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. It was therefore desirable for a first offender to be treated differently when a court had to consider the sentence to be imposed on a first offender vis-avis as second or habitual offender. However, notwithstanding the general principle that first offenders should be treated leniently, when sentence was being imposed, the measuring rod or standard in any given circumstance was the offence creating statute and the punishment provided therein..."
I am mindful of the fact that a prison term is mandatory when a person is convicted under section 69 of Act 29. There is no option of a fine.
Having found that the 10 years maximum sentence imposed on the appellant is manifestly excessive, I will allow the appeal against sentence. The ten years I.H.L. is reduced to four years imprisonment with hard labour.
Appeal against conviction refused.
Appeal against sentence allowed.