FOSTER BOAKYE AND OTHERS vs. THE REPUBLIC [2012]DLCA3130

Date	2012-02-24
Suit No.	H2/14/2011
Citation No.	[2012]DLCA3130

JUSTICE MARIAMA OWUSU JA [PRESIDING]

JUSTICE FRANCIS G KORBIEH JA

JUSTICE IRENE C DANQUAH JA

OSEI OWUSU ANTWI ESQR. FOR STEPHEN OPPONG ESQR. FOR APPELLANT

OTCHERE ANTWI ESQR. CHIEF STATE ATTORNEY FOR THE REP/RESP.

[2012]DLCA3130
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													<main id="main" class="content" style="min-height: 60rem" >FOSTER BOAKYE AND OTHERS<o:p></o:p>vs.<o:p></o:p>THE REPUBLIC<o:p></o:p>[COURT
OF APPEAL, KUMASI]<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">

H2/14/2011&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE:
24TH FEBRUARY, 2012<o:p></o:p>

OTCHERE
ANTWI ESQR. CHIEF STATE ATTORNEY FOR THE REP/RESP.<o:p></o:p>

<p class="MsoNormal" align="center" style="text-align:center;border:none;
mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGEMENT<o:p></o:p>

</div>IRENE
C DANQUAH JA<o:p></o:p>This is an appeal against
the judgment of the High Court, Kumasi delivered on 19th October
2009.&nbsp; The Appellants were charged
together with two other accomplices.&nbsp; In
the course of the trial which took about a year, two of the accused namely
Owusu Banahene (A3) and Godfred Afful aka Aluta (A4) had the charges withdrawn
against them but Foster Boakye (A1), Joshua Oti Achemfour (A2) and Augustine
Kwabena Nyantakyi (A5) were however, convicted and sentenced to fifteen years imprisonment
with had labour.<o:p></o:p>Foster Boakye and Joshua
Oti Achemfour who are the Appellants herein were charged with conspiracy to
commit robbery and attempt to rob and Augustine Kwabena Nyantakyi&nbsp; charged with abetment of robbery.<o:p></o:p>A summary of the facts as
presented by the prosecution are as follows:<o:p></o:p>The complainant who is a businessman
resides at “Patase”.&nbsp; The 1st
and 5th accused are nephews of the complainant and live at “Pankrono”.&nbsp; The 2nd accused is a son of the
friend of the complainant.&nbsp; The 3rd
and 4th accused lived at “Suntreso and Ohwim near Barakese”.&nbsp; During the month of December 2008, the 1st
and 5th accused planned to rob the complainant who is their
uncle.&nbsp; In furtherance of the plan, 1st
accused contacted 4th accused to assist in procuring persons who
would commit the robbery.&nbsp; 4th
accused in turn informed 3rd accused who and later told them he knew
an armed robber who had served a sentence on a similar offence.&nbsp; The 3rd accused informed the 1st
and 4th accused that he could get the assistance of the said
ex-convict who became an informant to the police by feigning interest.&nbsp; On 29th December 2008, the 1st,
3rd and 4th accused went to “Abrepo” junction where they
met the ex-convict.&nbsp; At the meeting, the
1st accused formally engaged the ex-convict to assist them in the
robbery.&nbsp; 1st accused further
asked the ex-convict to procure a gun to carry out the robbery.&nbsp; <o:p></o:p>On 31st
December 2008, the 1st and 2nd accused sat in the
ex-convict’s car to survey the area.&nbsp; &nbsp;Thereafter January 12, 2009 was fixed as the
day in which the operation was to take place knowing very well that the
complainant would be bringing huge sums of money to the house.&nbsp; After everything had been planned the
informant went to the police and informed them.&nbsp;
The police asked him to feign interest so as to have the details of the
operation.<o:p></o:p>The complainant was
informed by the Police on 12 January 2009, when the Police joined the
complainant in his car to go to his house.&nbsp;
On arrival at the cemetery at “Patasi”, the 1st and 2nd
accused who were then in the company of the informant in the latter’s car, charged
and crossed the complainant’s car.&nbsp; At
gun point, they ordered the complainant to surrender moneys on him.&nbsp; The complainant complied and pointed to a box
in his car where an amount of GH¢5,800.00 was kept.&nbsp; When the 2nd accused made for the
money, the Police who were in the complainant’s car came out.&nbsp; Upon seeing the Police, the 2nd
accused managed to escape.&nbsp; 1st
accused was however arrested and confessed to the offence and he mentioned the
names of the others.&nbsp; 2nd
accused mentioned the 5th accused as the one who hatched the
plan.&nbsp; Further investigation led to the
arrest of 2nd, 3rd and 4th accused
persons.&nbsp; The 4th accused
confessed to the part he played but the 2nd, 3rd and 5th
accused denied any involvement in the crime.&nbsp;
<o:p></o:p>After the judgment was delivered,
Foster Boakye&nbsp; and Augustine Kwabena
Nyantakyi &nbsp;caused their lawyer to file a
Notice of Appeal against their conviction and sentence on 28th
October 2009 (see p.69 of the record).<o:p></o:p>The main grounds of appeal
are as follows:<o:p></o:p>“1.&nbsp; The trial judge erred in convicting the Appellants as the
conviction is against the weight of evidence.<o:p></o:p>2.&nbsp;&nbsp;&nbsp; The trial judge erred by convicting the Appellants especially
when no evidence had been led against him.<o:p></o:p>3.&nbsp;&nbsp;&nbsp; The trial judge erred by convicting the Appellants as the prosecution
failed to prove the ingredients of the offence.<o:p></o:p>4.&nbsp;&nbsp;&nbsp; That the trial judge erred by relying solely on the statement of
the co-accused to convict the 5th Appellant.<o:p></o:p>5.&nbsp;&nbsp;&nbsp; That the sentence is too harsh and excessive.”<o:p></o:p>From the record, there is
no indication that any additional ground(s) was filed.&nbsp; It must be stated that the Appellant are not
five and as such there could not have been a 5th Appellant.&nbsp; As far as the</main>