MALLAM ALI YUSUF ISSAH vs. THE REPUBLIC [2003]DLSC2390

Date	2003-04-02
Suit No.	CRIMINAL APPEAL NO. 4/2001
Citation No.	[2003]DLSC2390

WIREDU C.J (PRESIDING

ACQUAH J.S.C

AKUFFO J.S.C

AFREH J.S.C

DR. TWUM J.S.C.

MR. AMBROSE DERRY FOR APPELLANT.

MR. ANTHONY GYAMBIBY FOR RESPONDENT.

[2003]DLSC2390
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													<main id="main" class="content" style="min-height: 60rem" >MALLAM ALI YUSUF ISSAH<o:p></o:p>vs.<o:p></o:p>THE REPUBLIC<o:p></o:p>[SUPREME
COURT]<o:p></o:p>CRIMINAL
APPEAL NO. 4/2001<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:
2ND APRIL, 2003.<o:p></o:p>

</div>COUNSEL<o:p></o:p>MR.
AMBROSE DERRY FOR APPELLANT.<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">

MR.
ANTHONY GYAMBIBY FOR 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 1.0pt 0in">

WIREDU,
C.J (PRESIDING), ACQUAH, J.S.C., AKUFFO, J.S.C., AFREH, J.S.C., DR. TWUM,
J.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT<o:p></o:p>AKUFFO,
J.S.C.<o:p></o:p>The
Appellant is the former Minister of Youth and Sports. On 20th July 2001, the
High Court convicted him on two counts of stealing and fraudulently causing the
financial loss of $46,000.00 to the State contrary to sections 124(1) and
179A(3)(a), respectively, of the Criminal Code, 1960 (Act 29). The High Court
sentenced him to serve 4 years in jail on each count plus a fine of
¢10,000,000.00 or, in default, 12 months in jail on count two. Additionally,
the Appellant was ordered to refund the amount of $46,000.00 or, in default,
serve an additional jail term of 2 years. All the sentences were to run
concurrently. The Appellant appealed to the Court of Appeal against both the
conviction and the sentences. On October 23rd 2001, the Court of Appeal gave
judgment upholding the conviction and, therefore, dismissed the appeal.
However, the court varied the sentences by quashing the 2 years' jail sentence
imposed in default of making the refund ordered by the High Court.<o:p></o:p>The
Appellant by his appeal herein challenges the Court of Appeal's confirmation of
the conviction and the remaining sentences. The Notice of Appeal sets out 9
grounds of appeal, which may be summed up as follows:—<o:p></o:p>1. The confirmation of the conviction
of the Appellant on the two counts cannot be supported by the evidence.<o:p></o:p>2. The Court of Appeal erred when it
failed to evaluate the evidence in accordance with the law regarding circumstantial
evidence (grounds 2 and 3).<o:p></o:p>3. The Court of Appeal erred when it
failed to determine whether, with regard to the evidence of the prosecution
before the High Court, the requisite standard of proof had been satisfied.<o:p></o:p>4. The Court of Appeal erred when it
held that the Appellant had failed to prove that he had been framed.<o:p></o:p>5. The Court of Appeal erred when it
confirmed that the Appellant's former bodyguard was not a vital witness and
therefore the failure by the prosecution to call him was not fatal to the
prosecution of the Appellant.<o:p></o:p>6. The Court of Appeal erred when it
ignored the Learned Trial Judge's statement, which raised the Appellant's
burden of proof to one beyond reasonable doubt.<o:p></o:p>7. The sentence to refund the missing
amount having been declared to be enforceable by civil action, the remaining
sentences of 4 years on each count are too harsh.<o:p></o:p>8. The manner in which the trial of
the Appellant was conducted by the High Court deprived the Appellant of and/or
infringed his fundamental human right to a fair trial under Article 19 of the
Constitution.<o:p></o:p>At
the hearing of this appeal, we drew the attention of counsel for the Appellant
to the interlocutory appeal in which he had raised the issue as to the
constitutionality of the charge brought against the Appellant in count two.
Counsel's reply was that, once an appeal is by way of a rehearing, the Court of
Appeal's decision on the constitutionality of the charge, together with its
decision on all other issues, are all before us. He, therefore, invited us to
consider all of the record before us.<o:p></o:p>Section
31 (1) of the Courts Act, 1993 (Act 459) provides as follows:—<o:p></o:p>"Subject to subsection (2) of
this section, an appellate court on hearing any appeal before it in a criminal
case shall allow the appeal if it considers that the verdict or conviction or
acquittal ought to be set aside on the ground that it is unreasonable or cannot
be supported having regard to the evidence or that the judgment in question
ought to be set aside on the ground of a wrong decision of any question of law
or fact or that on any ground there was a miscarriage of justice and in any
other case shall dismiss the appeal."<o:p></o:p>Subsection
(2), to which subsection (1) is made subject, requires the appellate court to
dismiss an appeal if it considers that there has, actually, been no substantial
miscarriage of justice or that the point made by the appeal consists of a
technicality or procedural error or a defect in the charge or indictment but
that there is evidence to support the alleged offence in the statement of
offence. From the grounds of appeal, the Appellant is saying that his
conviction cannot be supported having regard to the evidence and that, in any
event, the sentence is too harsh. He is also saying that he has been denied his
constitutional right to a fair trial.<o:p></o:p>Regarding
the evidence, we have reviewed the entire record of proceedings and have no
doubt that the Appellant's conviction, as well as the confirmation thereof by
the Court of Appeal and the respective reasons, given by the learned Justices
of Appeal for their conclusions, are amply supported by the evidence adduced by
the prosecution. Furthermore, this is an appeal from concurrent decisions of
the courts below, i.e. the High Court and the Court of Appeal. That being s</main>