EMMANUEL AMENUVE vs. THE REPUBLIC [2016]DLHC11605

Date	2016-03-16
Suit No.	CC NO: BCRA 163/15
Citation No.	[2016]DLHC11605

HIS LORDSHIP JUSTICE ALHAJ ABDULLAH IDDRISU

APPELLANT (UNREPRESENTED)

SERINA P.N. DA SEGLAH (FOR THE RESPONDENT)

[2016]DLHC11605
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >EMMANUEL AMENUVE<o:p></o:p>vs.<o:p></o:p>THE REPUBLIC<o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

<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">CC NO: BCRA 163/15&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 16TH MARCH, 2016<o:p></o:p>

</div>COUNSEL:<o:p></o:p>APPELLANT
(UNREPRESENTED)<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

SERINA
P.N. DA SEGLAH (FOR THE RESPONDENT)<o:p></o:p>

</div>CORAM:<o:p></o:p>HIS
LORDSHIP JUSTICE ALHAJ ABDULLAH IDDRISU<o:p></o:p><div style="border-top-width: 1.5pt; border-top-color: windowtext; border-left: none; border-bottom-width: 1.5pt; border-bottom-color: windowtext; border-right: none; padding: 1pt 0cm;">

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

</div>&nbsp;This is a criminal appeal
against sentence. The Appellant was charged&nbsp;
with the crime of conspiracy to defraud by false pretence contrary to
sections 23 (1) and 131 of Act 29, Attempt to commit fraud contrary to sections
18 (1) and 131 of Act 29 and defrauding by false pretence contrary to S131 of
Act 29. He was tried, found guilty, convicted and sentenced to five years IHL
on count one without an option of a fine, and to ten years IHL on each of
counts two and three without an option of a fine and the sentences were to run
concurrently.<o:p></o:p>His appeal to this court is
against sentence on the following grounds<o:p></o:p>1.
That the sentence of ten years is excessively harsh taking into consideration the
circumstances surrounding the case.<o:p></o:p>2.
That Appellant is remorseful and promises not to have a brush with the law
again.<o:p></o:p>3.
That Appellant prays that the Honourable court will temper justice with mercy
by reducing the sentence of ten years IHL to the minimum.<o:p></o:p>In effect the Appellant is
appealing against sentence.<o:p></o:p>The facts of this case are
that the complainant is a contractor who resides at N.U. a suburb of Madina in
Accra whilst the appellant is a trader and resides at Mallam. On the 12th
November, 2012 the complainant received a phone call from one Bright Tamakloe
now at large, who lured the complainant into believing that he could get him a
contract to supply chlorine phosphate to some white men. He introduced one
Michael (at large) as the person who had custody of the chemicals. Later,
Michael sold some white powdery substance which he claimed to be chlorine
phosphate at a cost of GH₵500 to the complainant.
Subsequently, Tamakloe introduced one Elizabeth (now at large) who he claimed
lived in London. On 15th November, 2012, the complainant received a call from
Elizabeth that she had sent 20 units of laptops and will received a call from
the clearing agent. Not long after one Kennedy Owusu called claiming to be the
clearing agent and asked the complainant to pay an amount of GH₵6,700
into the Ecobank Account. The complainant managed to pay an amount of GH₵5,000,
however the agent informed him that because he failed to pay the full amount,
the goods had been returned to the owner. <o:p></o:p>On realizing that he had
been defrauding, the complainant made a report to the police.<o:p></o:p>On 4th July, 2013, the
complainant received a call from some persons introducing the same business to
him. A meeting was scheduled and police men dressed in plain cloths accompanied
the complainant. The appellant was arrested while trying to deliver some
powdery substance alleged to be chlorine phosphate. Upon interrogation, the
appellant claimed he was sent by a friend called Michael to deliver the said
substance in exchange of cash of Gh₵1,450.
An itemized bill police retrieved from the telecom company, regarding a cell
phone found on the appellant showed that he had been in constant communication
with John Darko who had previously posed as a white man to the complainant. The
appellant failed to lead police on the whereabouts of the said Michael. He was
charged with investigations and tried subsequently.<o:p></o:p>The appellant relies on his
petition which was filed on 14th May 2015 and he is unrepresented.<o:p></o:p>The Prosecution opposes the
appeal and prays that the appeal must be dismissed for lack of merit. It is the
Respondent’s contention that the judgment rendered by the trial judge is sound
in law and must not be disturbed, that the sentence of ten (10) years imposed
on the appellant for the conviction of defrauding by false pretence is a drop
in the ocean and should not be disturbed, considering the fact that the
appellant is a repeated offender. That the punishment imposed must serve as a
deterrent for others who may have plans of engaging in such nefarious acts in
future.<o:p></o:p>It is trite learning that in
dealing with an appeal of this nature the court is under obligation to satisfy
itself as to whether there were any mitigating factors which the trial court
took or failed to take into consideration before imposing the sentence. <o:p></o:p>If the record shows that the
judge took all the mitigating factors into consideration before imposing the
sentence, then his discretion in imposing the sentence can be seen as having
been properly exercised; and an appellate court in the absence of any special
circumstances would not want to interfere with such a sentence. If, however,
the record does not reveal that the judge took any such mitigating
circumstances into consideration, then the Appellate court as this court will
find out whether the said mitigating factors were such that if the trial judge
had adverted his mind to them, he would probably not have imposed the said
severe sentence. (See Asaah V The Republic [1978] GLR 1- 4).<o:p></o:p>I find that the judge at the
Circuit Court where the trial took place acted within his authority and
jurisdiction when he sentenced the Appellant to ten year</main>