FRANCIS KODJO FIEBOR vs. THE REPUBLIC [2011]DLCA5705

Date	2011-11-10
Suit No.	CRIMINAL APPEAL NO. H2/21/2010
Citation No.	[2011]DLCA5705

S. E. KANYOKE JA (PRESIDING)

FRANCIS KUSI APPIAH (JA)

DENNIS D. ADJEI (JA)

THOMAS HUGHES FOR THE APPELLANT

MRS. MARINA APPIAH OPARE FOR THE RESPONDENT

[2011]DLCA5705
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													<main id="main" class="content" style="min-height: 60rem" >FRANCIS KODJO FIEBOR<o:p></o:p>[APPELLANT]<o:p></o:p>vs.<o:p></o:p>THE REPUBLIC<o:p></o:p>[RESPONDENT]<o:p></o:p>[COURT
OF APPEAL, [CRIMINAL DIVISION], ACCRA]<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 APPEAL NO. H2/21/2010&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: 10TH
NOVEMBER, 2011<o:p></o:p>

MRS.
MARINA APPIAH OPARE FOR THE RESPONDENT<o:p></o:p>

</div>DENNIS D. ADJEI (JA)<o:p></o:p>The
appellant was granted leave by this Court on 23rd November, 2009 to appeal
against both conviction and sentence imposed on him by the High Court, Ho on 16th
April, 2002. The petition of appeal was filed by the Appellant on 2nd December,
2009.<o:p></o:p>The
historical antecedents of the case are that the Appellant and one Noble Agbleke
@ Crazy were charged with the offence of robbery contrary to Section 149 of the
Criminal Code Act 29/60 as amended by NLCD 398 paragraph 8. The particulars of
offence were that on 30th November 1998 at Akanu near Dzodze in the Volta Region,
the appellant and one Noble Agbleke acted together and robbed Mawuli Aleke of
his motor bike with Registration No. TG-E 5649 valued at GH¢100.00 and a carpet
valued GH¢14.00 at gun point. On 6th December, 2001 the Community Tribunal, Ho,
committed the two accused persons to stand trial at the High Court, Ho. The
accused persons pleaded “not guilty” to the offence of robbery at the High
Court, Ho. On 21st March 2002, the fact given by prosecution in Court were that
on 30th November, 1998 at about 2.00 pm, the Complainant Mawuli Aleke, a Togolese
and his sister came to Dzodze market on a motor bike with No. TG-E 5469 to buy
a floor carpet. At about 4.30 pm, when they were returning to Togo through
Akanu on the motor bike, the accused persons came out from the bush with a pistol
and cutlass. It was Noble Agbleke who was holding the pistol and told the
Complainant to stop or he would shoot him. The Complainant out of fear jumped
from the motor bike and took to his heels. The accused persons took the motor
bike away.<o:p></o:p>The
Complainant and her sister lodge a complaint with the Police at Dzodze. With
the assistance of some witnesses who later gave evidence in the case, the motor
bike was found at Lomnava. The 1 st accused person was identified as one of the
two persons who brought the motor bike to Lomnava and abandoned it there. The 1
st accused person who was then serving a two year jail sentence at Ho prison
was identified as one of the accused persons. The Appellant herein was also
arrested at Dzodze by the Police.<o:p></o:p>The
prosecution called five (5) witnesses and after the close of the case for the
prosecution, the trial High Court Judge ruled that the prosecution had established
a prima facie case and called upon the accused persons to open their defence.
The accused persons gave their evidence and closed their case. On the 16 th day
of April 2002, the jury found the accused person guilty. The trial High Court
convicted the accused persons and sentenced them to life imprisonment.<o:p></o:p>It
is only the 2 nd accused person who has appealed to this Court against both
conviction and sentence. The 1 st accused person did not file an appeal in this
matter. It is the 2nd accused person who is the appellant in this appeal.<o:p></o:p>The
Appellant filed four (4) grounds of appeal and they are as follows:<o:p></o:p>1.
The conviction is against the weight of evidence.<o:p></o:p>2.
The sentence is harsh in the circumstance of Appellant<o:p></o:p>3.
The Appellant had no opportunity to sum up his case to the<o:p></o:p>Court
and<o:p></o:p>4.
No evidence of the sum up by the Judge.<o:p></o:p>I
will start with ground four (4) of the appeal. Counsel for the Appellant in arguing
this ground submitted that from the proceedings, there is no evidence that the
case for the prosecution and the Appellant was summed up. According to the
Counsel for the Appellant, if the Judge had summed up the case, he would have
explained to the jury that the appellant put up a defence of alibi as he told
the Court that at the time he was alleged to have committed the offence at
Akanu in the Volta Region he was then at<o:p></o:p>Takoradi
in the Western Region. He therefore described the conviction and sentence as
travesty of justice.<o:p></o:p>The
Attorney General in his response stated that even though the summing up could
not be traced there is evidence on record that the summing up began at 10.22 am
and concluded at 10.49 am and the inability of the Court to produce the summing
up has not occasioned any miscarriage of justice and the appeal should not be
entertained on that frivolous ground.<o:p></o:p>I
will refer to page 31 of</main>