452/91 EMMANUEL AGBO KWASHIE & 450/91 SOLOMON SAWA vs. THE REPUBLIC [1998]DLSC6119

Date	1998-07-14
Suit No.	CRIMINAL MOTION NO. 2/98
Citation No.	[1998]DLSC6119

MRS. BAMFORD-ADDO J.S.C. (PRESIDING)

HAYFRON-BENJAMIN J.S.C.

ADJABENG J.S.C.

ATUGUBA J.S.C.

MS. AKUFFO J.S.C.

THE ATTORNEY-GENERAL ABSENT.

APPLICANTS PRESENT IN PERSON.

[1998]DLSC6119
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													<main id="main" class="content" style="min-height: 60rem" >452/91 EMMANUEL AGBO KWASHIE &amp; 450/91 SOLOMON SAWA<o:p></o:p>{APPELLANTS}<o:p></o:p>vs.<o:p></o:p>THE REPUBLIC<o:p></o:p>{RESPONDENT}<o:p></o:p>[SUPREME
COURT, ACCRA-GHANA]<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">

CRIMINAL
MOTION NO. 2/98&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;DATE: 14TH JULY, 1998.<o:p></o:p>

APPLICANTS
PRESENT 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 1.0pt 0in">

MRS.
BAMFORD-ADDO J.S.C. (PRESIDING), HAYFRON-BENJAMIN J.S.C., ADJABENG J.S.C., ATUGUBA
J.S.C., MS. AKUFFO J.S.C. <o:p></o:p>

</div>MRS.
J. BAMFORD-ADDO, J.S.C.<o:p></o:p>The Appellants herein are
in effect praying this court for a grant to them of the right of Appeal to
enable them to appeal their conviction and sentence of Death for Robbery
Contrary to Section 149 of the Criminal Code 1960 (Act 29).<o:p></o:p>They were tried and
convicted by the Ashanti Regional Public Tribunal Kumasi on the 4th March 1991 but
failed to appeal to the National Appeal Tribunal until after the 1992
Constitution. On January 12th, 1998 they appealed to the Court of Appeal which
dismissed their appeal for lack of jurisdiction relying on the Supreme Court
case of The People v. Surpong and others No.2/93 dated 28/6/93 S.C. unreported.<o:p></o:p>Under Section 7(3) of the
Transitional Provisions of the 1992 Constitution cases partly heard before the National
Public Tribunal shall be continued and completed before that Tribunal after
which the Tribunal shall ceases to exist either on completion of the hearing or
within six months after the coming into force of the 1992 Constitution which
ever is earlier. In this case there was no pending case before the National Public
Tribunal as the Appellants failed to appeal, until the Tribunal ceased to
exist.<o:p></o:p>They have now applied to
us to grant them a right of Appeal but since the right of appeal is a statutory
right given by legislation this court has no power to grant their request and
their application is therefore dismissed in respect of the request for a right
of Appeal.<o:p></o:p>There is no doubt that the
Regional Tribunal has jurisdiction to try the offence of Robbery see S.4(c) of PNDCL
78. However we have considered the legality of the sentence of Death imposed on
Appellants.<o:p></o:p>Under Section 16(1) of
PNDCL 78<o:p></o:p>"16(1) Subject to (7) of this
section the death penalty may be imposed by a Public Tribunal for such offences
as may be specified in writing by the council and in respect of cases where the
Tribunal is satisfied that very grave circumstances meriting such a penalty
have been revealed."<o:p></o:p>Section 16(5) also provides that:<o:p></o:p>"S. 16(5) where a Public Tribunal
determines that an offence triable under this law is subject to specified penalties
under a pre-existing law at the time of its commission the Tribunal may in its
discretion apply such penalties in appropriate cases in so far as such
application is consistent with the terms, effect and purposes of this
law."<o:p></o:p>In this case the trial
Tribunal should have specified the reasons why the Appellants merited the death
sentence rather than the sentence applicable to Robbery under Section 149 of
the Criminal Code 1960 (Act 29), and permissible also under S.16(5) of PNDCL
78. This was not done. It seems to us that this is a prerequisite to the
imposition of the sentence of Death penalty for Robbery and therefore in our
view the imposition of the death penalty was improper and unjust. We would
therefore in exercise of our supervisory jurisdiction under Article 132 of the
Constitution of 1992 substitute a fixed sentence of 15 years imprisonment with
Hard Labour on Appellants. Accordingly in place of the Death sentence the Appellants
are sentenced to 15 years imprisonment with Hard Labour with effect from the
date of their original conviction.<o:p></o:p><o:p>&nbsp;</o:p>HAYFRON-BENJAMIN,
J.S.C.<o:p></o:p>I agree.<o:p></o:p><o:p>&nbsp;</o:p>ADJABENG,
J.S.C.<o:p></o:p>I agree.<o:p></o:p><o:p>&nbsp;</o:p>MS.
AKUFFO, J.S.C.<o:p></o:p>I also agree.<o:p></o:p><o:p>&nbsp;</o:p>ATUGUBA,
J.S.C.<o:p></o:p>The applicants apply to
this Court for what would seem to be an extension of time within which to
appeal against their conviction and sentence for robbery by the erstwhile
National Public Tribunal, dated the 4th day of March 1991. There is
no discoverable legal provision which vests this court with jurisdiction to entertain
any such application. In REPUBLIC VS. ADU-BOAHEN AND PRATT, Reference No. 1193 dated
28 June 1993 unreported and PEOPLE VS. SARPONG SUBNOM. REPUBLIC VS. NATIONAL PUBLIC
TRIBUNAL; EX PARTE OFFICE OF THE SPECIAL PUBLIC PROSECUTOR, Reference No. 2193,
28 June 1993 unreported this court had to construe the provisions of section 7
of the transitional provisions of </main>