KWAKU TENGE@BURGER vs. THE REPUBLIC [2015]DLCA8328

Date	2015-05-27
Suit No.	SUIT NO:H2/08/2015
Citation No.	[2015]DLCA8328

ADJEI J.A. (PRESIDING)

SOWAH J.A.

KWOFIE J.A.

EMILY ADDO OKYIRE CSA FOR THE RESPONDENT

APPELLANT IN PERSON

[2015]DLCA8328
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													<main id="main" class="content" style="min-height: 60rem" >KWAKU TENGE@BURGER<o:p></o:p>(APPELLANT)<o:p></o:p><span lang="EN-GB" style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,serif;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0;mso-ansi-language:EN-GB">vs.<o:p></o:p>THE REPUBLIC<o:p></o:p>(RESPONDENT)<o:p></o:p><o:p>&nbsp;</o:p>[COURT OF APPEAL,
KOFORIDUA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

SUIT NO:H2/08/2015&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 27TH MAY, 2015<o:p></o:p>

</div>COUNSEL:<o:p></o:p>EMILY ADDO OKYIRE CSA
FOR THE RESPONDENT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

APPELLANT
IN PERSON<o:p></o:p>

</div><span lang="EN-GB" style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,serif;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
mso-ansi-language:EN-GB">CORAM:<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

</div>&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;
padding:0cm 0cm 1.0pt 0cm">

JUDGMENT<o:p></o:p>

</div>ADJEI,J.A:<o:p></o:p>The
Appellant was convicted by the High Court Ho on charges of conspiracy to commit
robbery contrary to Section 23(1) of Act 29/60 as amended by Act 646 of 2003
and robbery contrary to Section 149 of Act 29/60 as amended by Act 646 of 2003.<o:p></o:p>The
facts of the case were that on 9th October, 2003, Issifu Sambo and
Mahama Bande both Fulani herdsmen were returning from Ho to their village known
as Wumenu, where they had gone to sell a cow and realised an amount of Two
Hundred and Fifty Cedis (GH¢250.00).They were walking to their village Wumenu, through
a bush path with the sum of GH¢250.00 in the night. At about 8:30 pm, they were
attacked by three men. One of the attackers was wielding a gun. The attackers
caught up with Mahama Bande, one of the Fulani herdsmen and searched him for the
money. When they did not find that money on him they pursued the other person, Issifu
Sambo(deceased). In order to scare him they fired a gun shot but did not hit
him. They chased him, caught up with him, tortured and strangulated him to
death and took the money from him. The prosecution preferred a charge of
conspiracy to commit robbery and robbery against the accused persons. <o:p></o:p>The
third accused person was at large and was not tried. The 1st and the
2nd accused person went through a trial. The trial Judge at the end
of the trial acquitted the 2nd accused person on both counts. The
trial Court was silent on the 3rd accused person who was at large.
The trial court convicted the 1st accused person; the Appellant
herein on both counts and sentenced him to life imprisonment.<o:p></o:p>The
Appellant, who was convicted and sentenced on 22nd January, 2007 did
not appeal against the conviction until December 2014 when he applied to this
Court for leave to appeal. Pursuant to the leave granted by this Court, the Appellant
filed his petition of appeal on 5th January, 2015.<o:p></o:p>The
Petition of appeal was filed by the Appellant in person. Even though he
indicated that he was appealing against sentence, the petition of appeal had
other grounds of appeal which he termed as “additional grounds of Appeal”.<o:p></o:p>In
effect, the appeal was against both conviction and sentence even though his
application for extension of time was in respect of appeal against sentence. The
Court was ready to adopt the appeal against conviction even though the leave granted
him was in respect of appeal against sentence as it would have neither occasioned
miscarriage of justice nor surprise to the State. The Courts have been liberal
in criminal appeals in particular where the appellant complains about injustice
or miscarriage of justice. Irrespective of the delay in filing a petition of
appeal, the Courts are willing to grant extension of time to file appeal
provided the Applicant can demonstrate that the appeal filed would have a
chance of success or should be able to explain his inability to file his appeal
within time.<o:p></o:p>On
10th March, 2015, when the appeal came on for hearing, the Appellant indicated
that the appeal was against sentence and was abandoning the other three grounds
on conviction. This Court therefore struck out the other three grounds of
appeal against conviction as abandoned. The only ground of appeal before the
Court was in respect of sentence which he described as harsh. The ground of
appeal was formulated thus:<o:p></o:p>“The life sentence imposed on the Appellant is harsh,
considering the circumstances surrounding the case, hence his plea for
reduction of sentence”.<o:p></o:p>Robbery
is a first degree felony, and the maximum sentence a court could impose on a
convict is life imprisonment. &nbsp;The
Criminal Code (Amendment) Act 2003, Act 646, however, prescribes minimum
sentences for persons convicted of robbery with or without the use of offensive
weapon or offensive missile. The minimum sentence a Court could impose on a
person convicted of robbery without offensive weapon or missile is ten (10)
years and with offensive weapon or missile is fifteen</main>