YAW AMOABENG vs. THE REPUBLIC [2016]DLCA8447

Date	2016-10-26
Suit No.	SUIT NO: H2/21/2016
Citation No.	[2016]DLCA8447

ADJEI J.A. (PRESIDING)

SOWAH J.A.

MENSAH J.A.

APPELLANT IN PERSON

MRS. EMILY ADDO OKYIRE (CSA) FOR THE RESPONDENT

[2016]DLCA8447
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													<main id="main" class="content" style="min-height: 60rem" >YAW AMOABENG<o:p></o:p>(APPELLANT)<o:p></o:p><span lang="EN-GB" style="mso-bidi-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: H2/21/2016&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 26TH OCT, 2016<o:p></o:p>

</div>COUNSEL:<o:p></o:p>APPELLANT IN PERSON<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">

MRS. EMILY ADDO
OKYIRE (CSA) FOR THE RESPONDENT<o:p></o:p>

</div><span lang="EN-GB" style="mso-bidi-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">

ADJEI J.A.
(PRESIDING), SOWAH J.A., MENSAH J.A. <o:p></o:p>

</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">

<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
text-align:center;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">JUDGMENT<o:p></o:p>

</div>ADJEI, J.A:<o:p></o:p>The
Appellant herein and four other persons were charged with conspiracy to commit
crime to wit robbery contrary to Section 23(1) and 149 of Act 29/60 as amended
by the Criminal (Amendment) Act 2003 (Act 646) and assault contrary to Section
84 of Act 29/60. The five persons including the Appellant herein were charged
and arraigned before the High Court Koforidua.<o:p></o:p>The
1st Accused person was Joshua Kwadwo Asare and the Appellant herein
was the 2nd accused person. The 3rd, 4th and 5th
accused persons were at large and not tried. The 1st Accused person
pleaded guilty with explanation to all the three counts. The Appellant herein on
the other-hand, pleaded guilty to all the three counts.<o:p></o:p>The
facts of the case were that the 1st Accused person was a student and
the Appellant was a driver. Both of them were intimate friends. On 23rd
February, 2009, the 1st Accused person and the Appellant herein together
with the other three Accused persons at large had a meeting in which they
agreed to rob a certain man they had spotted at Kukurantumi Township of his
brand-new Opel Astra Taxi cab with No. As 1826 Y. When the victim parked his
said taxi cab at the taxi station to wait for passengers, the 1st
and the 2nd Accused persons went and had a chat with the driver of
the taxi cab by name Annor Alisha. The 1st and 2nd Accused
persons boarded the taxi cab from Kukurantumi to Ankaase. After the taxi cab
had got to the Moslem cemetery on the Kukurantumi-Asafo Motor road, one of the Accused
persons informed the driver of the taxi cab to stop for him to urinate. It was
then around 8.20 pm. The driver suspected a foul play, refused to stop and
decided to turn back towards Kukurantumi to prevent the commission of the crime.
<o:p></o:p>The
1st Accused person slapped the driver from behind as he was then
seated on the passenger seat behind the driver. The Appellant herein who was
then seated on the passenger’s side in front of the taxi cab held the steering
wheel and removed the key. Not knowing to the driver of the taxi cab, the other
three Accused persons who are at large had laid ambush at the Muslim Cemetery
to help the 1st and 2nd Accused persons to rob the
complainant of his taxi cab. In the course of struggling with the taxi driver, the
3rd, 4th and 5th Accused persons emerged from
the bush and helped the 1st and 2nd Accused persons to
push the driver from the taxi cab. They also assaulted the driver before they
were able to overpower him. They chased the driver into the bush and drove the
taxi cab away. The Accused persons drove the taxi cab to Suame Magazine in Kumasi
to sell it for GH₵1,500.00
and the 1st and 2nd Accused persons were arrested upon a
tip off.<o:p></o:p>The
1st Accused person who pleaded guilty with explanation was convicted
by the trial High Court Judge without properly evaluating the explanation
offered by him. The 1st Accused person after having served for five
years as a convict appealed to the Court of Appeal. The Court of Appeal upheld
the appeal on the basis that if the trial High Court Judge had properly
evaluated the explanation offered by the 1st accused person, he should
have come to the conclusion that if the accused person proves the substance of his
explanation at the trial, it would constitute a valid defence. The Court did
not order for retrial as the accused person had then served for five years
imprisonment and would have been unjust and unfair for him to stand trial on
the same offence.<o:p></o:p>The
Appellant her</main>