AUGUSTINE OSEI vs.THE REPUBLIC [2017]DLCA4796

Date	2017-11-30
Suit No.	CRIMINAL APPEAL NO.: H2/08/2015
Citation No.	[2017]DLCA4796

E. K. AYEBI J.A. (PRESIDING)

G. TORKORNOO (MRS) J.A

A. M. DOMAKYAAREH (MRS) J.A.

ISAAC OWUSU ANSAH FOR THE APPELLANT

ATTORNEY FOR THE RESPONDENT

[2017]DLCA4796
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													<main id="main" class="content" style="min-height: 60rem" >AUGUSTINE OSEI<o:p></o:p>(APPELLANT)<o:p></o:p>vs.<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;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.: H2/08/2015&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; DATE: 30TH
NOVEMBER, 2017<o:p></o:p>

ATTORNEY
FOR THE RESPONDENT&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>

</div>E. K. AYEBI, J. A.<o:p></o:p>The
trial court in this appeal is the Circuit Court, Kumasi.&nbsp; Initially the appellant and ten others who
were at large, were charged with three counts of conspiracy to rob contrary to
Section 23(1) and 149 of Act 29/60 and robbery contrary to Section 149 of Act
29/60.&nbsp; The appellant pleaded not guilty
to the charges.&nbsp; After the first
prosecution witness gave evidence, the charges were withdrawn and the appellant
alone was charged with one count of dishonestly receiving contrary to Section
146 of Act 29/60.&nbsp; Appellant pleaded not
guilty to this charge too.<o:p></o:p>But
after full trial, the Circuit Judge in a well laid out and reasoned judgment,
found him guilty and convicted him on 17th October, 2013.&nbsp; Dissatisfied with the conviction, appellant
appealed to the High Court on six grounds.&nbsp;
The High Court as a function of re-hearing, reviewed the evidence on
record and dismissed the appeal against both conviction and sentence on 13th
February 2014.<o:p></o:p>The
appeal to this court is the second by the appellant.&nbsp; The grounds of appeal filed and argued are
that:<o:p></o:p>1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The court erred when it affirmed the
decision of the trial Circuit Court that the subject matter of the theft (sic)
was obtained by means of robbery when no evidence was led to establish robbery
against the accused person or any other person.<o:p></o:p>2.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The High Court erred when it refused to
affirm that the conviction of the accused by the trial court was wrong in law
thereby causing miscarriage of justice.<o:p></o:p>3.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The sentence was excessive and harsh
(mitigation of sentence)<o:p></o:p>4.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The High Court erred when it refused to
admit that the trial court erred when it admitted a question which was based on
a document that was not in evidence.<o:p></o:p>No
additional ground was filed as indicated.<o:p></o:p>From
perusal of the record, the grounds of appeal herein are the same grounds of
appeal raised in the High Court.&nbsp; Except
for ground (4) which the trial judge addressed in his judgment, but the
appellate High Court omitted to address it.&nbsp;
Generally, therefore, the findings of the High Court judge were
concurrent with the findings of the trial court.&nbsp; In Kamil vrs the Republic (2011) SCGLR 300,
the principle is stated that unless:<o:p></o:p>(a)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; the lower courts had clearly erred in
the face of a crucial documentary evidence, or <o:p></o:p>(b)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; failed to apply a principle of evidence
properly; or<o:p></o:p>(c)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; the findings were so based on an
erroneous proposition of law that if that proposition be corrected, the
findings would disappear, it is not permissible for a second appellate court to
interfere with the concurrent findings of the lower courts.&nbsp; <o:p></o:p>And
in Section 31(2) of the Court Act, 1993 (Act 459) on appeal in criminal
matters, it is enacted that: <o:p></o:p>“The court shall dismiss the appeal if
it considers that no substantial miscarriage of justice has actually occurred
or that the point raised in the appeal consists of a technicality or procedural
error or a defect in the indictment but that there is evidence to support the
offence alleged in the statement of offence in the charge or indictment or any
other offence of which the accused could have been convicted upon that charge
or indictment”.<o:p></o:p>That
being so for the appellant to succeed in this court, he has to demonstrate to
our satisfaction that any of the situations listed in the Kamil case (supra)
has occurred and therefore his conviction and sentence </main>