KWAKU ATTIA ALIAS KILLER vs. THE REPUBLIC [2011]DLCA3705

Date	2011-06-01
Suit No.	CRIMINAL APPEAL NO. H2/13/2011
Citation No.	[2011]DLCA3705

MARIAMA OWUSU (MISS) J.A. (PRESIDING

F.G. KORBIEH J.A.

IRENE C. DANQUAH (MS.) J.A.

ANTHONY NAAMOH ESQ FOR THE APPELLANT

ATTORNEY GENERAL FOR THE RESPONDENT

[2011]DLCA3705
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													<main id="main" class="content" style="min-height: 60rem" >KWAKU ATTIA ALIAS KILLER<o:p></o:p>vs.<o:p></o:p>THE REPUBLIC<o:p></o:p>&nbsp;[COURT OF APPEAL, KUMASI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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CRIMINAL APPEAL NO. H2/13/2011&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: 1ST JUNE, 2011<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>ANTHONY NAAMOH ESQ FOR THE
APPELLANT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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ATTORNEY
GENERAL 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;
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MARIAMA
OWUSU (MISS), J.A. (PRESIDING), F.G. KORBIEH, J.A. AND IRENE C. DANQUAH (MS.),
J.A.<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;
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JUDGEMENT<o:p></o:p>

</div>IRENE
C DANQUAH JA<o:p></o:p>The facts of the case are
that the Appellant, Kweku Attia alias Killer was arrested and charged with the
offence of Robbery and Causing Harm before the High Court, Mampong-Ashanti.&nbsp; The facts of the case presented to the High
Court were that on 6th May 2009 the accused person and others at
large, armed with rifles went to the house of one Samuel Frimpong at H/No.32
Blk K Fawoade, at about 1.00am.&nbsp; Mr.
Frimpong in a bid to scare off the accused person and his colleague robbers
fired a warning shot.&nbsp; <o:p></o:p>The robbers returned fire
and captured two of his children whose rooms were located at the entrance of
the house.&nbsp; The robbers fired through the
bedroom door and succeeded in firing it open.&nbsp;
Sensing danger, Mr. Samuel Frimpong retreated from the bedroom to the
toilet and closed the door.&nbsp; The robbers
threatened to kill the children if he failed to emerge voluntarily from the
toilet which compelled him to come out.&nbsp;
The robbers told him to lie on his bed and threatened to kill him should
he fail to give them all valuables in the house especially money.&nbsp; Just after saying this, the robbers shot him
in the thigh and one of the pellets deflected and hit the wife, Mrs.
Frimpong.&nbsp; For fear of their dear lives
the couple gave the robbers GH¢1,800.00 and UK#300.00.&nbsp; They also took away three mobile phones.&nbsp; When the victims were being conveyed in a bus
to the hospital, the robbers crossed the vehicle and fired at it killing one
Samuel Gyaketey, a Good Samaritan who was assisting in conveying the victims to
hospital.&nbsp; Upon a tip off, the accused
was arrested at his hide out.<o:p></o:p>Prior to the commencement
of the trial at the High Court, Mampong-Ashanti, the Appellant had been tried
before the Circuit Court, Kumasi on charges of Robbery and Rape.&nbsp; That incident occurred at Fawoade on 5th
May 2009.&nbsp; The victims in that case were
the Sandra Moro family where the inmates of the house were robbed of four (4)
mobile phones and cash sum of GH¢169.00.&nbsp;
<o:p></o:p>The Appellant was further
accused of raping 19 years old Sandra Moro in addition.&nbsp; The Circuit Court Kumasi after the trial
convicted and sentenced the Appellant to a term of imprisonment of 50 years and
20 years to run concurrently.&nbsp; <o:p></o:p>Dissatisfied with the
decision of the Circuit Court, the Appellant lodged an appeal before the High
Court, Kumasi which upheld the appeal on the grounds that the Circuit Court
lacked jurisdiction to try rape cases.&nbsp;
The judgment of the Circuit Court was thus set aside for lack of
jurisdiction.&nbsp; The Republic, dissatisfied
with the judgment of the High Court’s decision lodged an appeal at the Court of
Appeal which is still pending.&nbsp; Upon the
release of the Appellant after the decision of the High Court, the Appellant
was re-arrested and put before the High Court, Mampong-Ashanti for his part in
the robbery which occurred in the home of Mr. and Mrs Samuel Frimpong in the
early hours of 6th May 2009.&nbsp; <o:p></o:p>At the trial, the Lawyer
for the Appellant filed an application on notice raising a preliminary legal
objection to have an order dismissing the case.&nbsp;
The main ground of the objection to the trial was that if indeed the
Applicant had committed offences on the 5th and 6th May
2009 both offences should have been preferred against the Appellant on the same
charge sheet with different counts before the Circuit Court, Kumasi.&nbsp; The Appellant Counsel who swore to the
Affidavit in Support of the Application deposed that the present charge sins
against Chapter 5; that is Fundamental Human Rights and Freedom of the 1992
Constitution of Ghana, particularly, the Double Jeopardy principle and
therefore the Appellant be acquitted and discharged.&nbsp; In opposing the application, the
Republic, per Emmanuel L Otoo Boison, State Attorney, deposed that the
re-arrest of the Appellant was in respect of a different crime.&nbsp; <o:p></o:p>Further that the two offences
are very distinct and independent from each other and that there is no known
criminal procedure for joinder of such offences.&nbsp; Counsel deposed further that it is a
fundamental principle governing the joinder of charges to lean in favour of
separate trials for every distinct offence.&nbsp;
The High Court, Mampong-Ashanti refused the Appellant’s application in
its ruling dated 10th February 2011, hence this appeal.<o:p></o:p>The grounds of appeal are
as follows:<o:p></o:p>a.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;That the learned judge erred by not ruling on
whether or not under Article 19 (7) of the 1992 Constitution
the Appellant can be tried again.<o:p></o:p>b.<sp</main>