ALHAJI YUSIF ALHASSAN @ OBOLO (APPELLANT) vs. THE REPUBLIC [2016]DLCA4525

Date	2016-02-29
Suit No.	CRIMINAL APPEAL NO: H2/1/2014
Citation No.	[2016]DLCA4525

AYEBI J.A. (PRESIDING)

TORKORNOO (MRS.) J.A.

DOMAKYAAREH (MRS.) J.A.

MR. P. K. O. MENSAH FOR APPELLANTS: PRESENT

MR. MARIE LOUISE SIMMONDS (ASA) FOR RESPONDENT: PRESENT

[2016]DLCA4525
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													<main id="main" class="content" style="min-height: 60rem" >ALHAJI YUSIF ALHASSAN @
OBOLO<o:p></o:p>(APPELLANT)<o:p></o:p>&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;&nbsp;vs.<o:p></o:p>THE REPUBLIC<o:p></o:p>(RESPONDENT)<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">

CRIMINAL APPEAL NO: H2/1/2014&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: FEBRUARY 29, 2016<o:p></o:p>

</div>COUNSEL:<o:p></o:p>MR. P. K. O. MENSAH FOR APPELLANTS:
PRESENT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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MR.
MARIE LOUISE SIMMONDS (ASA) FOR RESPONDENT: PRESENT<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp; <o:p></o:p>AYEBI J.A. (PRESIDING),
TORKORNOO (MRS.) J.A., DOMAKYAAREH (MRS.) J.A.<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
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solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>AYEBI, (J. A.):<o:p></o:p>1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; In this case, the appellant was charged
with one count of murder contrary to Section 46 of the Criminal and Other
Offences Act, 1960 (Act 29) as amended.&nbsp;
He originally pleaded not guilty to the charge.&nbsp; But the principal issue raised in the appeal
is whether or not in plea bargaining, the plea of the accused should be taken
on the original charge for him to plead not guilty but guilty to a lesser
offence not charged and whether or not the plea of guilty to the lesser charge
in a statement by counsel for the accused rather than the accused himself is
wrong in law and has occasioned a substantial miscarriage of justice to the
accused.<o:p></o:p>2.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The case itself has a history which in
my view justifies the popular saying that justice delayed especially the trial
court is justice denied.&nbsp; The Attorney in
his written submission revealed that the appellant, one of his wives and two
other young men were arrested and indicted for conspiracy to commit murder,
attempted murder and murder in 2007.&nbsp;
Before the trial commenced, one of the two young men fell sick in prison
and later died while on bail.<o:p></o:p>3.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The trial itself started in Sunyani
High Court in 2008.&nbsp; The accused were
represented by counsel.&nbsp; At the close of
prosecution’s case, the wife of the appellant and the other young man were
acquitted and discharged.&nbsp; The appellant
put in a defence and closed his case.&nbsp;
Submissions were made to the jury on behalf of the State and the
appellant in 2011.<o:p></o:p>4.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The trial Judge adjourned the summing
up to a month later.&nbsp; But for over one
year, the trial Judge failed to do the summing up until two of the jurors
died.&nbsp; This necessitated a new jury to be
empaneled and the trial started afresh before a different Judge in 2013.&nbsp; <o:p></o:p>5.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; When the charge of murder was read and
explained to the appellant, he pleaded not guilty.&nbsp; After the presentation of the facts of the
case, the court asked counsel for the appellant if he had anything to say.&nbsp; I quote verbatim what transpired between the
bench and bar at page 21 of the record:<o:p></o:p>“By
Court:&nbsp;&nbsp;&nbsp;&nbsp; Counsel for accused person,
have you&nbsp;&nbsp; anything to say?<o:p></o:p>Counsel
for&nbsp;&nbsp; My Lord, we have had some years in
court accused: in respect of this case and we want to plead on the charge
leveled against him.&nbsp; We would want to
plead guilty to manslaughter.&nbsp; In fact we
have been in court for 6 years.<o:p></o:p>By
Court: Have the prosecution anything to say about the plea?<o:p></o:p>Prosecution:&nbsp; My Lord, we have nothing to say, we are
agreeable to the plea.<o:p></o:p>By
Court:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Let the records indicate that
the accused pleads not guilty to murder but guilty to manslaughter.&nbsp; For this reason, I proceed to convict accused
of manslaughter.&nbsp; Jurors discharged.&nbsp; Accused will remain with the police until
12:00noon when I will pronounce my sentence.&nbsp;
Case stood down to 12:00noon.<o:p></o:p>6.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; When the case was recalled, the court
asked the accused if he had anything to say before he is sentenced.&nbsp; The accused personally pleaded for mercy and
to be given the minimum sentence because he had suffered a lot.&nbsp; The counsel for the accused then apprised the
court of the circumstances surrounding the case, the facts of the case, the
number of years the accused been in court and prayed the court to have mercy on
the accused whose personal health and family have been greatly affected by the
incident and the long trial.<o:p></o:p>7.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The prosecution on its part urged upon
the court to take all the facts of the case into consideration particularly the
hitting of the head of the deceased with a Guinness bottle, which the medical
doctor found as the cause of the head injury to the deceased, leading to his
death.&nbsp; In reply, counsel for the accused
called the act of the accused as pure mistake from which he will learn.&nbsp; The court then sentenced the accused to 30
years IHL for manslaughter.&nbsp; In passing
the sentence, the court referred simply to Article 14 (6) of the 1992
Constitution and ordered the sentence to run from 2007 when accused was
a</main>