AKONSI SULEMANA AND IMORO ALHASSAN vs. THE REPUBLIC [2007]DLHC7382

Date	2007-09-17
Suit No.	CASE NO.F22/5/07
Citation No.	[2007]DLHC7382

HIS LORDSHIP G.S. SUURBAAREH J.

Y. SEINI FOR APPELLANTS

AGBEKO-KRA STATE ATTORNEY FOR REPUBLIC

[2007]DLHC7382
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													<main id="main" class="content" style="min-height: 60rem" >AKONSI SULEMANA AND IMORO ALHASSAN<o:p></o:p>vs.<o:p></o:p>THE REPUBLIC<o:p></o:p>[HIGH COURT, TAMALE]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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NO.F22/5/07&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 17TH SEPTEMBER
2007<o:p></o:p>

</div>COUNSEL: <o:p></o:p>Y. SEINI FOR APPELLANTS <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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AGBEKO-KRA,
STATE ATTORNEY FOR REPUBLIC <o:p></o:p>

</div>CORAM:<o:p></o:p>HIS
LORDSHIP G.S. SUURBAAREH J. <o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>This
is an appeal against the conviction and sentence of the appellants by the
Circuit Court Tamale, on 8th May 2007, to a term of 30 and 50 penalty units
respectively on charges of conspiracy to commit crime and causing unlawful
damage contrary to Sections 23 (1) and 172 (1) (b) the Criminal Offences Act
1960 (ACT 29). The Court convicted both appellants on the conspiracy charge but
acquitted the second appellants of the charge of causing unlawful damage. <o:p></o:p>The
grounds of appeal appearing in the notice of appeal filed on 9th May 2007 are: <o:p></o:p>"1. The judgment is against the
weight of the evidence. <o:p></o:p>2. Having found that the appellants
owned the land on which the damage is alleged to have been caused, the learned
Judge erred in convicting them." <o:p></o:p>The
main submission made by learned counsel for the appellants is that, for the
Court to proceed to convict the second appellant after making a finding of fact
that the land on which the building was destroyed belonged to the second
appellant, amounted to a contradiction. He further submits, on the authority of
OKOE vrs THE REPUBLIC (1979) GLR 137, that the Court, having found that the
land on which the building stood belonged to the second appellant, the
prosecution had failed to prove that the property destroyed was lawfully on the
land and since there was no evidence that the second appellant permitted the
erection of the building on his land, it was wrong for it to convict the
appellants for causing damage to property which was not lawfully where it was.
With regard to the first appellant, he submits that since he was acting within
the authority given him and which authority included the removal of unlawful
structures on the land, his action could not thereby become unlawful. <o:p></o:p>With
regard to the conspiracy charge, he submits that a person who is lawfully
entitled to cause damage to property cannot be guilty of conspiracy to do that
act which he is allowed to do and so will be his agent. <o:p></o:p>The
learned state attorney, who did not seem to have prepared for the appeal,
submits that the Circuit Court went on to convict the appellants after finding
that the District Court gave judgment to the second appellant in respect of the
land because the District Court's judgment was a default judgment which could
be set aside at any time and went on to cite some authorities on the effect of
a default judgment which I do not consider relevant for the purposes of this
appeal. <o:p></o:p>I
must state from the onset that the submission of learned counsel for the
appellants that the second appellant was convicted on the charge of causing
unlawful damage is not borne out by the record. On the contrary, the learned
Circuit Judge found him not guilty of that charge at page 28 of the record when
she held: <o:p></o:p>"A1 is found guilty of the
offences of causing unlawful damage contrary to Section 172 (1) (b) of Act
29/60 and accordingly convicted. A2 is however acquitted and discharged on that
count" (emphasis). <o:p></o:p>I
also find nothing on the record to support the view expressed by the learned
state attorney that all the appellants were convicted on both counts neither is
there anything to support the conclusion that the learned Circuit Judge based
her conviction on the fact that the judgment of the District Court, upon which
she made a finding of fact that the land belonged to the second appellant, was
a default judgment. <o:p></o:p>As
indicated, the main submission by learned counsel for the appellants is that,
having found that the land on which the property was destroyed belonged to the
second appellant, the Court was wrong in convicting them of the offences
charged as the property was not lawfully on the land and therefore its removal
therefrom could not be unlawful. It is true that the learned Circuit Judge, in
her judgment at page 28 of the record, found from the evidence that judgment
was given in respect of the disputed land to the second appellant by the
District Court, Tamale on 9th January 2006. She however went on to say that
prior to that judgment the complainant had an allocation letter in respect of
the plot which he honestly believed was valid and it was in that believe that
he put up the three rooms on the land when any dispute to his title had not
arisen. She then expressed an opinion that without staying the civil action
pending the outcome of the criminal case, that the second appellant
"sneaked to another Court and hurriedly obtained a default judgment".
These findings and remarks show that she did not find the conduct of the second
appellant above reproach. <o:p></o:p>By
the provisions of Section 30 of the Courts Act 1993 (Act 459) and Section 330
of the Criminal and Other Offences (Procedure) Act 1960 (Act 30), since an
appeal is in effect a rehearing of the case, the appellate Court must consider
the evidence on record and then decide whether the conclusions drawn from it
and the findings of the trial judge are supportable. I will therefore have to
consider the evidence on record with a view to determining whether the
conviction of the appellants by the learned Circuit Judge can be supported. </main>