YARO AND ANOTHER vs. THE REPUBLIC [1987]DLHC1217

Date	1987-03-07
Suit No.
Citation No.	[1987]DLHC1217

OSEI-HWERE J.

E. F. SHORT FOR THE FIRST APPELLANT.

NO APPEARANCE BY OR ON BEHALF OF THE SECOND APPELLANT.

S. BADOO PRINCIPAL STATE ATTORNEY FOR THE RESPONDENT.

[1987]DLHC1217
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													<main id="main" class="content" style="min-height: 60rem" >YARO AND ANOTHER<o:p></o:p>&nbsp;vs. <o:p></o:p>THE REPUBLIC<o:p></o:p>[HIGH COURT, CAPE COAST]<o:p></o:p>&nbsp;[1979] GLR 10<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:
7 MARCH 1978<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">

E. F. SHORT FOR THE FIRST APPELLANT.<o:p></o:p>

NO APPEARANCE BY OR ON BEHALF OF THE SECOND
APPELLANT.<o:p></o:p>

S. BADOO, PRINCIPAL 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">

OSEI-HWERE J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF OSEI-HWERE J.<o:p></o:p>The
appellants were arraigned before the Circuit Court Cape Coast, on varying
charges of defrauding by false pretences under section 131 of the Criminal
Code, 1960 (Act 29), and abetment of defrauding by false pretences. The
particulars of the offence against the first appellant (Kojo Yaro), inter alia,
were that he, with intent to defraud, induced Chief Alhaji Walla the first
prosecution witness to part with the sum of ¢7,000 by a false representation that
four and a half pieces of brass which he was giving to him as security for the
money were genuine gold, which representation he knew to be false. The second
appellant is alleged to have abetted the first appellant in the commission of
the offence charged. The appellants pleaded not guilty on their arraignment and
the prosecution’s case against them, in a nutshell, was that the first
appellant, in the company of the second appellant, approached the first
prosecution witness with four and a half pieces of metal and with a
representation that they were gold. Upon that representation he is alleged to
have obtained to a loan of ¢7,000 which he secured by a deposit of the pieces
of metal with the first prosecution witness. The second appellant was alleged
to have confirmed that those pieces of metal were gold. The prosecution say
that before the first prosecution witness handed the money to the first
appellant he called in the second and third prosecution witnesses to witness
the transaction. The first appellant failed to pay back to the first
prosecution witness the ¢7,000 at the stipulated time and, what is more, he
never showed his face until the first prosecution witness discovered him at
Cape Coast on the day of his arrest. The four and a half pieces of metal turned
out to be nothing but brass with a very little coating of sold which has no
value. The appellants denied the charges. The first appellant said that it was
rather the first prosecution witness who was owing him ¢200 and that on the day
of his arrest he had gone to the first prosecution witness’s house to look him
up but that it ended in a quarrel with the first prosecution witness’s wife.
The first prosecution witness came to arrest him and preferred this charge
against him. The second appellant said that he had never set eyes on the first
prosecution witness until the day of his arrest. The trial judge found both
appellant guilty and sentenced the first appellant to a fine of ¢7,000 or four
years’ imprisonment and the second appellant also to a fine of ¢300 or six
months’ imprisonment with hard labour. He also ordered that ¢7,200 out of the
fine, if paid, should be given to the first prosecution witness and reserved in
the first prosecution witness the right to enforce the compensation by a civil
process of execution should the appellant fail to pay the fine.<o:p></o:p><o:p>&nbsp;</o:p>Aggrieved
by their convictions and sentences both have appealed to this court and the
first appellant, particularly, has put forward the following grounds of appeal:<o:p></o:p>“(1) That
the conviction cannot be supported having regard to the evidence led. (2) That
the sentence is harsh and excessive. (3) That the sentence is illegal and wrong
in law.”<o:p></o:p><o:p>&nbsp;</o:p>At the
hearing of this appeal neither the second appellant nor his counsel appeared,
although served with a hearing notice through his solicitor. The first
appellant was, however, fully represented. His counsel substantially raised
before me those matters which he had unsuccessfully urged before the trial
court on his submission of no case and also in his address. Taking the question
of sentence first he argued that the sentence imposed on the first appellant
was harsh and excessive and showed a complete disparity between his sentence
and that of the second appellant. Not only that, he considered the sentence itself
illegal because compensation was ordered to be paid out of the fine. Counsel
then took the court in a canter through the prosecution’s evidence in an effort
to show, by the conflicts and inconsistencies, that the whole charge against
his client was a frame up. The opening salvo of the learned principal state
attorney was to remind the court that it has no jurisdiction to entertain the
appeal as the petition was filed out of time by two days. He then argued at
length in his effort to support both the conviction and the sentence. The
submissions adduced by both counsel will be referred to hereafter where
necessary. There can be no doubt that the first appellant was out of time by
two days in filing his petition of appeal. His counsel confessed to the court
that he had always been under an apprehension that the limited period within
which an appeal could be lodged from convictions on summary trials is 30 days
and not ten days. He, however, invited me to extend the time in view especially
of the severity of the sentence. The court, indeed, h</main>