YAW SEKYERE vs. THE REPUBLIC [2017]DLCA4874

Date	2017-02-28
Suit No.	SUIT NO: H2/20/2016
Citation No.	[2017]DLCA4874

ADJEI J.A. (PRESIDING)

SOWAH J.A.

KOGYAKWA J.

CYRIL TEFREKU BOATENG FOR THE RESPONDENT IN BOTH CASES

APPELLANTS IN PERSON

[2017]DLCA4874
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													<main id="main" class="content" style="min-height: 60rem" >YAW SEKYERE<o:p></o:p>(APPLICANT/APPELLANT)<o:p></o:p>vs.<o:p></o:p>THE REPUBLIC<o:p></o:p>(RESPONDENT/RESPONDENT)<o:p></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;
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SUIT NO: H2/20/2016&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; 28TH FEBRUARY 2017<o:p></o:p>

</div><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Times New Roman&quot;;mso-fareast-theme-font:major-fareast;
mso-bidi-font-family:&quot;Times New Roman&quot;;mso-bidi-theme-font:major-bidi;
letter-spacing:.75pt;mso-bidi-font-style:italic">COUNSEL:<o:p></o:p>CYRIL
TEFREKU BOATENG FOR THE RESPONDENT IN BOTH CASES<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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APPELLANTS
IN PERSON<o:p></o:p>

</div><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Times New Roman&quot;;mso-fareast-theme-font:major-fareast;
mso-bidi-font-family:&quot;Times New Roman&quot;;mso-bidi-theme-font:major-bidi;
letter-spacing:.75pt;mso-bidi-font-style:italic">CORAM:<o:p></o:p>ADJEI
J.A. (PRESIDING), SOWAH J.A., KOGYAKWA J. <o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormalCxSpMiddle" align="center" style="margin-bottom:0in;margin-bottom:
.0001pt;mso-add-space:auto;text-align:center;border:none;mso-border-top-alt:
solid windowtext 1.5pt;mso-border-bottom-alt:solid windowtext 1.5pt;padding:
0in;mso-padding-alt:1.0pt 0in 1.0pt 0in"><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Times New Roman&quot;;mso-fareast-theme-font:major-fareast;
mso-bidi-font-family:&quot;Times New Roman&quot;;mso-bidi-theme-font:major-bidi;
letter-spacing:.75pt;mso-bidi-font-style:italic">JUDGMENT<o:p></o:p>

</div>ADJEI,
J.A:<o:p></o:p>The Appellants herein were
convicted by the High Court Sunyani on 17th May, 2006 for robbery
contrary to section 149 of Act 29 as amended by the Criminal Code (Amendment), Act
2003(Act 646). The Appellants herein and the other accused persons were
convicted and sentenced to thirty years imprisonment for the offence of robbery.
There are two different appeals filed by the convicts who are Appellants before
this Court. The two appeals before us namely Salifu Mohammed v The Republic
with Suit No.H2/201/2016 and Yaw Sekyere v The Republic, Suit no.
H2/06/2017 emanate from the same criminal trial captioned: The Republic
v Yaw Sekyere and 2 Others with suit No F2/9/06. The suit was filed before the
High Court, Sunyani. The two appeals are from one criminal trial and we hereby
consolidate them in the interest of justice. The convicts were three namely; Yaw
Sekyere who is the Appellant in Suit No. H2/06/2017; Nana Akwasi Boadu who has
not filed an appeal against the decision of the trial High Court and Salifu
Mohammed whose appeal is before this Court as Suit No. H2/20/2016. Even though the
accused persons therein were tried and convicted by the High Court Sunyani and
ordinarily their appeals should have been heard by the Court of Appeal, Kumasi,
this Court has assumed jurisdiction over the matter as both appellants and the
2nd accused person who did not appeal are serving their terms of
sentence in Nsawam, Koforidua and Nsawam respectively which are within the
jurisdiction of this Court. The practice in criminal appeal is that an appeal
may be heard in the proper appellate court within whose jurisdiction the matter
was heard or in the Court whose jurisdiction the accused persons are serving
their sentences. Even though there is one Court of Appeal with different
divisions in some of the regions in the country, the practice is that it is the
division of the Court of Appeal in whose jurisdiction the matter was heard or
where the accused persons are serving their sentences where an appeal to the
Court of Appeal is heard. Article 136(4) of the Constitution of Ghana empowers
the Chief Justice to create such divisions of the Court of Appeal as he considers
fit and in pursuance to that has established the Court of Appeal in Kumasi,
Cape Coast, Tamale, Koforidua and Ho. Though divisions, they are one Court of
Appeal and it is their geographical division which vary. The practice is to
avoid forum shopping and also to prevent the abuse of the process of the Court.
At a point in time it became a notorious fact that where a person filed his
appeal in one of the divisions of the Court and it was dismissed, the same
person would file a similar appeal in another division of the Court to try his
luck which was contrary to public policy and amounted to an abuse of the
process of the Court. Despite the practice by the Court to avoid the abuse of
its process, the powers of the Chief Justice under section 104 of the Courts
Act, Act 459 to transfer a case from on court to the other remains unfettered.<o:p></o:p>In the consolidated appeal
before this Court, the Appellants have only appealed against the sentence of thirty
years imprisonment imposed on them. They have described the sentence as harsh
and excessive.<o:p></o:p>An appellate Court under
Section 30 of the Courts Act has a discretion to vary a sentence imposed by a trial
Court on an appellant but the discretion shall be exercised in accordance with
law. The orders available to Superior Courts over criminal appeals before them including
both conviction and sentence are regulated by Section 30 of the Courts Act, Act
459. It provides thus:<o:p></o:p>“Subject to this Act, an Appellate court
may in a criminal case<o:p></o:p>a.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; On an appeal from a conviction or
acquittal<o:p></o:p>