FRANCIS DORGBETOR & ANOTHER vs. THE REPUBLIC [2012]DLCA3182

Date	2012-05-24
Suit No.	CIVIL APPEAL NO. H2/28/2010
Citation No.	[2012]DLCA3182

KANYOKE J.A. (Presiding)

YAW APPAU J.A.

ADUAMA OSEI J.A.

MR.J.K. YEBOAH FOR THE 1ST APPELLANT

MR. ISAAC AIDOO FOR THE 2ND APPELLANT

MR. MATTHEW AMPONSAH (CSA) FOR THE RESPONDENT

[2012]DLCA3182
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													<main id="main" class="content" style="min-height: 60rem" >FRANCIS
DORGBETOR &amp; ANOTHER<o:p></o:p>vs.<o:p></o:p>THE REPUBLIC<o:p></o:p>&nbsp;[COURT
OF APPEAL, 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">

CIVIL APPEAL NO. H2/28/2010&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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 MAY, 2012<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>MR.J.K. YEBOAH FOR THE 1ST APPELLANT <o:p></o:p>MR. ISAAC AIDOO FOR THE 2ND APPELLANT <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">

MR. MATTHEW AMPONSAH (CSA) 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;
padding:0in 0in 1.0pt 0in">

KANYOKE &nbsp;J.A. (Presiding), YAW APPAU J.A., ADUAMA OSEI
J.A.<o:p></o:p>

</div>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></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><o:p>&nbsp;</o:p>YAW APPAU, J.A.<o:p></o:p>The two appellants namely; Francis Dorgbetor
and Ramzy William Amui, were charged variously in the court below together with
six (6) others making eight (8), under four (4) counts of (i) conspiracy to
commit the offence of robbery; (ii) robbery and (iii) dishonestly receiving;
contrary to sections 23 (1), 149 and 146 of the Criminal Offences Act, 1960
(Act 29).<o:p></o:p>Francis Dorgbetor who is the 1st appellant
herein and four out of the eight accused persons were charged together on two
counts of conspiracy to commit the offence of robbery and then robbery contrary
to sections 23 (1) and 149 of the Criminal Offences Act, 1960 (Act 29]. He was
listed as the 3rd accused on the charge sheet while the four others were listed
as the 1st, 2nd, 4th and 5th accused persons.<o:p></o:p>Aside of the 5th accused on the list who was
acquitted and discharged, the first four accused persons (including the 1st
appellant), were all convicted on the charges under the two counts and
sentenced accordingly. While his accomplices were sentenced to concurrent
sentences of 10 years IHL on each of the two counts, 1st appellant alone was
sentenced to 20 years IHL on each of the same counts also to run concurrently.
The reasons the trial judge gave for giving the 1st appellant double the
sentence of the others was that he had a previous conviction. The 1st appellant,
not pleased with his conviction and sentence, has filed the instant appeal
before us.<o:p></o:p>As for the 2nd appellant Ramzy William Amui,
he was arraigned on the same charge sheet on a charge of dishonestly receiving;
contrary to section 146 of Act 29/60 with one other under the fourth count. He
was listed as the eighth accused person on the charge sheet while the other
accused person by name Jerry Boampong was listed as the 7th. Both were alleged
to have dishonestly received one of the subject matters of the robbery; to wit
a Toyota Highlander 4x4 vehicle, which belonged to the complainant in the case.
The two were found guilty of the charge. They were accordingly convicted and
sentenced to 10 years IHL each under the said count. The 2nd appellant too was
not amused about his conviction and sentence and has also filed an appeal
before us. It is these two appeals that we have been called upon to consider.<o:p></o:p>Both
appellants have different legal representation. Since they were convicted on
different charges, their appeals would be considered separately, beginning with
the 1st appellant who was convicted and sentenced on the charges of conspiracy
to rob and robbery.<o:p></o:p>The 1st appellant filed his notice of appeal
through his counsel on 20th January 2010 and it contained six (6) grounds of
appeal. These grounds were: -<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">1. The conviction ought to be set aside on the ground that it cannot be supported
having regard to the evidence.<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">&nbsp;2. The trial judge failed to
consider adequately the 3rd accused/ appellant's plea of alibi thereby
occasioning substantial miscarriage of justice to the appellant. <o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">3. The trial judge erred in law by rejecting the tendering in evidence
of the affidavit sworn to by the 1st and 2nd co-accused persons in this case in
the Nsawam Prison while on remand exonerating the 3rd accused/appellant herein
and saying that t</main>