KWAKU ATIA vs. THE REPUBLIC [2010]DLHC8185

Date	2010-11-15
Suit No.	COURT CASE No. A15/113/10
Citation No.	[2010]DLHC8185

HIS LORDSHIP JUSTICE JACOB B. BOON

ANTHONY NAMOO FOR APPELLANT

ANITA WASE FOR THE REPUBLIC

[2010]DLHC8185
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													<main id="main" class="content" style="min-height: 60rem" >KWAKU ATIA<o:p></o:p>vs.<o:p></o:p>THE REPUBLIC<o:p></o:p>[HIGH COURT,
KUMASI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

COURT
CASE No. A15/113/10&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: 15TH
NOVEMBER, 2010<o:p></o:p>

</div>COUNSEL:<o:p></o:p>ANTHONY
NAMOO FOR APPELLANT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

ANITA
WASE FOR THE REPUBLIC<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:0cm 0cm 1.0pt 0cm">

HIS LORDSHIP JUSTICE JACOB B. BOON<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

</div>This is an appeal from the judgment of His Honour Judge
E. Amo Yartey, sitting at a Kumasi Circuit Court where he convicted the
appellant who was charged with two counts of robbery contrary to section 149 of
the Criminal and other Offences Act of Ghana 1960, (Act 29) as amended by the
Criminal Code (Amendment) Act, 2003 (Act 646) and, rape which contravenes
section 97 of the same Act 29, amended by section 11 of Act 554 of 1998. The
appellant was found guilty on both counts and sentenced to six hundred months
on the first count of robbery, and two hundred and forty months on that of
rape. The sentences were ordered to run consecutively. The appellant is
aggrieved by both conviction and sentence, and has filed the instant appeal on
the grounds that:<o:p></o:p><o:p>&nbsp;</o:p>“(a)
the conviction was against the weight of evidence<o:p></o:p>(b)
the learned Circuit Court Judge erred in holding it was the duty of the accused
to call material witnesses to testify on his behalf failing which was fatal to
accused’s case.<o:p></o:p>(c)
the learned judge fell into grave error by relying on hear say evidence to rule
that the accused has a house at Maase.<o:p></o:p>(d)
the judge was wrong in law in substituting the evidence on record with his own.<o:p></o:p>(e)
the judge erred in holding that since exhibit ‘A’ depicted that the hymen of
PW2 was not present and she had an inflamed vulva when examined by a medical
officer, the appellant raped PW2, and <o:p></o:p>(f)
the judge was wrong in law in sentencing the appellant to 600 months 1HL on
Count One and 240 months on Count Two, and ordering the sentences to run
consecutively.”<o:p></o:p><o:p>&nbsp;</o:p>When the appeal came for hearing, counsel for the
Republic, Miss Anita Wase conceded that the trial judge was wrong when he
ordered the sentences to run consecutively since both offences were said to
have been committed in one continuous transaction. I agree with both counsel
for the Republic and the appellant that by the provisions of sections 302 and
303 of the Criminal Procedure Act, 1960 (Act 30) the sentences should have been
ordered to run concurrently as the offences, for which the appellant was
convicted, were said to have been committed in a single transaction. In Amoako
v. The Republic (1984-1986) 2GLR 766 it was held at headnote (1) that:<o:p></o:p><o:p>&nbsp;</o:p>“the
cumulative effect of both sections 302(a) and 303 of the Criminal Procedure
Code, 1960 (Act 30), was that when acts of an accused person were done in
execution of the same design and that they formed one continuous transaction,
then the court should make any sentences imposed on the accused to run
concurrently and not consecutively. Infact section 303 of Act 30 made it
mandatory.”<o:p></o:p><o:p>&nbsp;</o:p>Also see Adjei v. The Republic (1977) IGLR 156.<o:p></o:p><o:p>&nbsp;</o:p>The facts of the case as they were presented by the
prosecution at the trial circuit court were that on 5/05/09 around 8:00pm the
appellant and three others, at gun-point, attacked and robbed the complainants</main>