AVEGAVI AND OTHERS vs. THE REPUBLIC [1971]DLSC2088

Date	1971-03-26
Suit No.
Citation No.	[1971]DLSC2088

SIRIBOE J.S.C.

SOWAH JA

ANIN J.A.

APPELLANTS IN PERSON.

F. P. SARKODEE SENIOR STATE ATTORNEY FOR THE RESPONDENT.

[1971]DLSC2088
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													<main id="main" class="content" style="min-height: 60rem" >AVEGAVI AND OTHERS <o:p></o:p>vs. <o:p></o:p>THE REPUBLIC <o:p></o:p>[COURT OF APPEAL]<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;[1971] 1 GLR 428<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:
26 MARCH 1971.<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;
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APPELLANTS
IN PERSON.<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">

SIRIBOE J.S.C., SOWAH AND ANIN JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ANIN J.A.<o:p></o:p>Anin J.A.
delivered the judgment of the Court: On 19 February 1971, the appeal of each
appellant was allowed and we now give our reasons.<o:p></o:p>The
appellants were convicted by Kingsley-Nyinah J. sitting with a jury at the
Criminal Session of the High Court, Ho on 16 January 1968, of two counts each
of the offence of robbery, contrary to section 149 of the Criminal Code, 1960
(Act 29), as amended by the Criminal Code (Amendment) (No. 3) Act, 1963 (Act
157), section 3. The first and second appellants were each sentenced to fifteen
years’ imprisonment with hard labour on each count, the sentences to run
concurrently; and the third appellant was sentenced to eighteen years’
imprisonment with hard labour on each count, the sentences to run concurrently.<o:p></o:p><o:p>&nbsp;</o:p>The gist
of the prosecution case was that on the day in question the appellants waylaid
one Gabriel Kwaovi Torsavi, a bread seller, as he plied along the
Ziome-Akpokploe road on his bicycle; threatened him with violence; stole from
his person his Ghana and French money totalling £G17 or N¢40.80; and robbed him
at the same time of his said bicycle. The prosecution called six witnesses to
testify in support of their case and to show that the appellants confessed to
the crime alleged against them, both before the said witnesses and in their
cautioned statements to the police.<o:p></o:p><o:p>&nbsp;</o:p><o:p>&nbsp;</o:p>At the
close of the prosecution case, the learned judge ruled that there was a prima
facie case for each accused person to answer. The accused persons, who were
unrepresented at the trial, elected to give evidence on their own behalf. Each
accused person vehemently denied the charges preferred against him and denied
having made the confession attributed to him. After the learned judge’s
summing-up, the jury returned unanimous verdicts of guilty against each accused
person on both counts and the court imposed the said sentences on the accused
persons. From their convictions and sentences, they have now appealed to this
court. They were unrepresented by counsel.<o:p></o:p><o:p>&nbsp;</o:p>From our
own perusal of the record of proceedings, we noticed a fatal procedural flaw
which occurred in the course of the cross-examination of the third accused
(Nicholas Kofi) on 20 December 1967 and which warranted the appeal of each
appellant being allowed. The procedural irregularity in question went to the
root of our whole concept of a fair trial. During the cross-examination of the
third accused, counsel for the prosecution applied for leave to cross-examine
him as to his previous convictions, because, as he claimed, the third accused
has attacked the character of Sergeant Hanu, a prosecution witness. Leave was
granted forthwith by the learned judge to counsel to prove the previous
convictions, not only of the third accused person, but somewhat inexplicably,
those of the first accused as well. All of this took place in the presence of
the jury.<o:p></o:p><o:p>&nbsp;</o:p>In our
considered view, there was no justification, either in law or on the facts, for
the court to have permitted the cross-examination of the third accused person
on his previous convictions and for the first accused’s previ</main>