FAISAL MOHAMMED AKILU vs. THE REPUBLIC [2017]DLSC2624

Date	2017-07-05
Suit No.	CIVIL APPEAL NO. J3/8/2013
Citation No.	[2017]DLSC2624

ADINYIRA (MRS) JSC PRESIDING

YEBOAH JSC

AKOTO-BAMFO (MRS

JSC

BENIN JSC

APPAU JSC

NII AKWEI BRUCE-THOMPSON FOR THE 2ND ACCUSED /APPELLANT / APPELLANT.

YVONNE ATAKORA OBUOBISA (MRS) ACTING DIRECTOR OF PUBLIC PROSECUTION FOR THE RESPONDENT/RESPONDENT/RESPONDENT.

[2017]DLSC2624
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													<main id="main" class="content" style="min-height: 60rem" >FAISAL MOHAMMED AKILU<o:p></o:p>vs.<o:p></o:p>THE REPUBLIC<o:p></o:p>&nbsp;[SUPREME COURT, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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CIVIL APPEAL NO. J3/8/2013&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: 5TH JULY, 2017<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>NII AKWEI BRUCE-THOMPSON
FOR THE 2ND ACCUSED /APPELLANT / APPELLANT.<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">

YVONNE
ATAKORA OBUOBISA (MRS), ACTING DIRECTOR OF PUBLIC PROSECUTION FOR THE
RESPONDENT/RESPONDENT/RESPONDENT.<o:p></o:p>

</div>CORAM: <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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ADINYIRA
(MRS), JSC PRESIDING YEBOAH, JSC AKOTO-BAMFO (MRS), JSC BENIN, JSC APPAU, JSC<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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JUDGEMENT<o:p></o:p>

</div>APPAU, JSC:-<o:p></o:p>The appellant is before us on a second appeal
against the majority decision of the first appellate court which affirmed his
conviction and sentence by the trial High court. The brief facts of this case
are that the appellant and three other friends chartered a taxi-cab to Nyaho
Clinic area for one of them to collect money from someone. On the way, it was
alleged an attempt was made by the appellant and his friends to snatch the
taxi-cab in which they were, from the driver. In the process, they took an
amount of GHc40.00 from the driver but could not drive away the car. A military
officer, who ventured onto the scene, assisted the driver of the taxi cab to
arrest one of the accused persons while the others, including the appellant who
was the 2nd defendant at the trial, managed to escape. They were
later arrested with the exception of one person who was tried in absentia with
the others on charges of conspiracy to rob and robbery contrary to sections 23
(1) and 149 of Act 29/60. <o:p></o:p>Appellant and the others were convicted by the
trial High court and each sentenced to 15 years IHL on each of the counts to
run concurrently. The appellant appealed against his conviction and sentence to
the Court of Appeal but the court dismissed the appeal and affirmed the
judgment of the trial court. The only eye witness account of the alleged
attempted robbery that the prosecution gave at the trial was the testimony of
the victim who testified as P.W.1. The appellant consistently denied his
involvement in the crime. He denied the charges against him in his
investigation caution statements and in his evidence in court. The question for
determination was therefore to be settled on the oath of the victim as against
that of the appellant. <o:p></o:p>Though the appellant lined up as many as eight (8)
grounds of appeal for determination by this Court, the main contention in this
appeal was that both the trial court and the first appellate court did not give
any consideration at all to the defence of the appellant before finding him guilty
on the two counts of conspiracy and attempted robbery. The appellant’s case is
that both the trial court and the Court of Appeal did not comply with the
principles laid down by this Court in the Amartey
case (infra) before convicting him on the charges.<o:p></o:p>In the celebrated case of AMARTEY V THE STATE
[1964] GLR 256, this Court held that; “where
a question boils down to oath against oath, especially in a criminal case, the
trial judge should first consider the version of the prosecution, applying to
it all the tests and principles governing credibility of witnesses; when
satisfied that the prosecution’s witnesses are worthy of belief, consideration
should then be given to the credibility of the accused’s story, and if the
accused’s case is disbelieved, the judge should consider whether, short of
believing it, the accused’s story is reasonably probable”.<o:p></o:p>The decision in the Amartey case quoted supra,
re-stated the principle laid down by the West African Court of Appeal in the
case of R v ABISA GRUNSHIE [1955] 1 WALR
36- WACA. The principle is that; in a criminal trial, where a court does
not believe the story or an explanation of an accused person, the court should
nevertheless go ahead to consider whether that explanation is reasonably
probable when considered together with the evidence on record as a whole before
deciding on the guilt of the accused. This principle has been applied in
several cases including; R v ANSERE
[1958] 3 WALR 385– CA; DARKO v THE REPUBLIC [1968] GLR 203- CA; KWESI v THE
REPUBLIC [1977] 1 GLR 448- CA and LUTTERODT
v C.O.P. [1963] GLR 429– SC. <o:p></o:p>In the Lutterodt
case supra, this Court settled on three stages that every court had to go
through in determining the guilt of an accused at the close of a criminal trial.
The Court held that:<o:p></o:p>“Where
the determination of a case depends upon facts and the court forms an opinion
that a prima facie case has been made, the court should proceed to examine the
case for the defence in three stages;<o:p></o:p><span lang="EN-GB" style="font-size:12.0pt;
line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;mso-fareast-font-family:
&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;">i.