KWAME ABOAGYE vs. THE REPUBLIC [2012]DLCA5695

Date	2012-03-15
Suit No.	CRIMINAL APPEAL NO: H2/11/2010
Citation No.	[2012]DLCA5695

YAW APPAU J.A. (Presiding)

ACQUAYE J.A. DZAMEFE J.A.

MR. ISSAC AIDOO ESQ. FOR APPELLANT

MR. REXFORD WIREDU FOR RESPONDENT

[2012]DLCA5695
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													<main id="main" class="content" style="min-height: 60rem" >KWAME ABOAGYE<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, ACCRA]<o:p></o:p>CRIMINAL APPEAL NO: H2/11/2010&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;DATE: 15TH MARCH, 2012<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div>COUNSEL: <o:p></o:p>MR. ISSAC
AIDOO ESQ. FOR APPELLANT<o:p></o:p>MR. REXFORD WIREDU FOR RESPONDENT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div>JUDGMENT IN APPEAL<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div>YAW APPAU, J.A.<o:p></o:p>When this case, which is an appeal from the
trial High Court, Cape Coast, was first listed before this Court for hearing;
it came to light that the record of appeal was incomplete. Firstly, it did not
contain the Charge Sheet that indicates the statement and particulars of the
offence or offences for which the appellant was charged before the trial court.<o:p></o:p>Secondly, it was without the judgment that
was delivered by the trial court leading to the conviction and sentence of the
appellant. The only extract in the record which shows that judgment was
delivered in the case was the Warrant of Commitment for Sentence which bore the
signature of the trial Judge Nana Gyamera-Tawiah, J. (now deceased) dated 28th
July 2005.<o:p></o:p>From the record, the appellant was charged
with the offence of robbery contrary to section 149 of Act 29 as amended by the
Criminal Code Amendment Act, 2003 [Act 646] but not conspiracy to commit
robbery as the appellant stated in the notice of appeal. The trial itself
commenced on 1st June 2005 and ended on 20th July 2005. The court then
adjourned to the following day, that is; 21st july 2005 for counsel's
addresses.<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;text-indent:.45pt;mso-pagination:none;
border:none;mso-padding-alt:31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">Both
counsel (i.e. the State Attorney Mr. Beke representing the Republic and then
Lawyer Harry Hayford representing the appellant) did address the trial court
viva voce and their submissions were recorded by the trial Court. After the
addresses, the trial court adjourned to 27th July 2005 for judgment. This was
what the trial judge said after the addresses: - "BY COURT: Having
listened to the addresses from lawyers for the parties, I hereby adjourn the
suit to the 27th of July 2005 for judgment".<o:p></o:p>The record,
however, shows that the judgment was delivered on the following day 28th July
2005 instead of 27th July 2005. Incidentally, the judgment that the trial court
delivered never formed part of the record submitted to this Court. This anomaly
was brought to the attention of the Lady Chief Justice after diligent efforts
by the Registry of the trial court had failed to produce the missing Charge
Sheet and the Judgment.<o:p></o:p>The main
reason behind this difficulty was that at the time the appeal was filed, the
trial judge had died so there was no other person from whom a copy of the
judgment could be obtained. The Honourable Lady Chief Justice directed this Court
to proceed to determine the appeal on the basis of the available record
visà-vis the orders and decision of the trial court. It is upon the above
antecedents that we proceeded to determine this appeal.<o:p></o:p>