ODONKOR vs. THE REPUBLIC [1967]DLCA1523

Date	1967-12-04
Suit No.
Citation No.	[1967]DLCA1523

AKUFO-ADDO C.J.

AZU CRABBE JA

LASSEY J.A.

S.H. ANANNCY FOR THE APPELLANT.

KISSEIH SENIOR STATE ATTORNEY FOR THE RESPONDENT.

[1967]DLCA1523
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													<main id="main" class="content" style="min-height: 60rem" >ODONKOR <o:p></o:p>vs. <o:p></o:p>THE REPUBLIC <o:p></o:p>[COURT OF APPEAL]<o:p></o:p>[1967] GLR 690<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
4 DECEMBER
1967.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

S.H. ANANNCY FOR THE APPELLANT.<o:p></o:p>

KISSEIH SENIOR STATE ATTORNEY, FOR THE RESPONDENT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

AKUFO-ADDO C.J., AZU CRABBE AND LASSEY
JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF AZU CRABBE J.A.<o:p></o:p>Azu
Crabbe J. A. delivered the judgment of the court. On 27 July 1967, we dismissed
the appellant’s appeal against that part of the judgment of the High Court
confirming his conviction for unlawfully and intentionally causing harm, but
allowed his appeal against that part of the judgment whereby the learned judge
of the High Court enhanced the sentence passed on the appellant by the learned
trial circuit judge. We now proceed to give our reasons.<o:p></o:p><o:p>&nbsp;</o:p>The
appellant was tried summarily in the Circuit Court, Accra, on a charge of
causing harm contrary to section 69 of the Criminal Code, 1960 (Act 29). The
facts found by the learned circuit judge are as follows:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“The
accused and the complainant are employees of Lennards Shoe Company of Accra. On
5 September 1965, there was a party at the residence of the manager of the
company, and the complainant who is employed as a driver drove employees of the
company including the accused from the company’s yard to the party. At the
close of the party the complainant drove the employees back including the
second and third prosecution witnesses (two ladies not employed by the company)
to the company’s yard. The employees desired that they might be taken to their
respective homes, but the driver refused to do so. At the company’s yard all
the employees except the accused alighted and went away. The accused refused to
go and asked the driver to drive him home as he was living at Achimota, about
six miles away, and as the driver had originally promised to take the employees
home. The two ladies (the second and third prosecution witnesses) were at the
scene. The second prosecution witness, a cousin to the complainant, intervened
while the accused and the complainant were exchanging words by saying that in
her school if the students were on excursion they were driven to the school for
each student to arrange her own transport home, and so he should fetch a taxi
and go home. When she said this the accused was offended and warned her to keep
out of it. The accused attempted to assault this girl (the second prosecution
witness) and so the complainant went to get the girl out of the hands of the
accused. After he had succeeded in doing so, the accused rushed on the
complainant held him and bit off part of his nose.”<o:p></o:p><o:p>&nbsp;</o:p>After
stating the above facts, the learned circuit judge examined fully the evidence
of the complainant and the other principal witnesses for the prosecution
alongside the plea of self-defence put forward by the appellant. He rejected
the appellant’s case, and therefore found him guilty of the charge and
convicted him accordingly, and sentenced the appellant to a day’s imprisonment
and a fine of £G100 or twelve months’ imprisonment with hard labour. He further
ordered that the sum of £G75 out of the fine should be paid to the complainant
as compensation. Before passing sentence the learned circuit judge recorded
that the appellant was 25 years of age. In an affidavit in support of an
application for bail to this court the appellant has stated that he is now 27
years of age.<o:p></o:p><o:p>&nbsp;</o:p>The
appellant appealed against his conviction to the High Court on a number of
grounds, and there the arguments of counsel for the appellant were directed
only to the merit of the appeal. Not a word was said by counsel about sentence.
Counsel for the Republic was not called upon, and he made no representations to
the court.<o:p></o:p><o:p>&nbsp;</o:p>Delivering
an unreserved judgment in which the evidence for both the prosecution and
defence was fully examined, the learned judge expressed himself as having found
“that the infliction of the harm by the appellant on the first prosecution
witness by biting his nose was unjustifiable in the circumstances.” The learned
judge then concluded his judgment as follows: “I dismiss the appeal and while
maintaining the conviction I vary the sentence of a fine of £G100 and
substitute for it a sentence of two years’ imprisonment with hard labour, for I
consider the circumstances too serious and disgraceful.”<o:p></o:p>