ASAMOAH GYAN vs. THE REPUBLIC [2018]DLCA4786

Date	2018-06-26
Suit No.	SUIT NO. H2/02/2016
Citation No.	[2018]DLCA4786

ADUAMA OSEI J.A. (PRESIDING)

DZAMEFE J. A.

WELBOURNE (MRS) J. A.

OBENG-MANU FOR APPELLANT.

CECILIA ANIMA PEPRAH TAKYI

STATE ATTORNEY FOR THE REPUBLIC.

[2018]DLCA4786
																																						<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" >ASAMOAH GYAN<o:p></o:p>(APPELLANT)<o:p></o:p>vs.<o:p></o:p>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">

SUIT NO. H2/02/2016&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;DATE: 26TH JUNE, 2018<o:p></o:p>

CECILIA
ANIMA PEPRAH TAKYI, STATE ATTORNEY FOR THE REPUBLIC.<o:p></o:p>

<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
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">JUDGMENT<o:p></o:p>

</div>WELBOURNE, JA<o:p></o:p>The
brief facts of this case are that on the 16th day of August, 2006 at about
12.15 pm the complainant and her sister whilst returning from a hotel at
Kenyasi, were accosted by the Appellant. The Appellant pulled out a cutlass and
asked to surrender all they had on them. They hesitated but the Appellant
threatened to chop off their heads. The complainant’s sister managed to escape.<o:p></o:p>Subsequently
the complainant removed Gh¢25,000.00 and gave same to the Appellant. Whilst
removing the money her mobile phone fell from her pocket and the Appellant
ordered her to give it to him. When she attempted to pick it for him, the
Appellant hit the complainant with the cutlass at her back and she gave the
phone to him.<o:p></o:p>After
collecting the phone, he fled the scene. Three days after the incident, the
Appellant was arrested and the case reported to the police.<o:p></o:p>The
Appellant was tried, convicted and sentenced by the trial High Court, Kumasi on
the 25th of October 2007 to a term of 27 years with hard labour (IHL) for the
offence of Robbery; contrary to Section 149 of Act29 of 1960 as amended.
Dissatisfied with the sentence imposed, not the conviction, the Appellant has
appealed against the sentence on the sole ground that:<o:p></o:p>“The sentence is harsh and excessive
having regard to the circumstance of the case which has resulted in substantial
miscarriage of justice”.<o:p></o:p>Section
149 of the Criminal and other Offences Act, 1960 (Act 29/60) as amended by Act
646, states that “Whoever commits robbery shall be guilty of first degree
felony. Section 150 defines robbery andsection149 (1) of the same Act 29 as
amended by provides that:<o:p></o:p>“Whoever commits robbery is guilty of
an offence and shall be liable, upon conviction on trial summarily or on
indictment, to imprisonment for a term not less than ten years, and where the
offence is committed by the use of an offensive weapon or offensive missile,
the offender shall upon conviction be liable to imprisonment for a term not
less than fifteen years”.<o:p></o:p>From
the facts, the Appellant has admitted the offence, and the phone; one of the
subject matter of the offence of the robbery is retrieved from the Appellant.<o:p></o:p>The
Appellant was convicted and sentenced summarily upon his own admission of the
commission of the offence. This has saved the Court a lot of time, stress and
valuable state resources.<o:p></o:p>It
is also pertinent to note that where a statute has prescribed the precise
punishment to be meted out to offenders, it is incumbent on the Court called
upon to enforce the law, to act within the strict language of the statute. In
Addovrs The Republic [1974] 1 GLR 254, the accused was charged, tried and
convicted for the offence of nuisance contrary to section 296 of the Criminal
Code, 1960 (Act 29) which was punishable by only a fine. He was nevertheless
sentenced to three months imprisonment. On appeal, it was held that the
sentence was unauthorized<o:p></o:p>The
exact sentence to be passed in most cases depends to a large extent upon the
discretion of the Court as well as its statutory jurisdiction.<o:p></o:p>Evidently,
Article 296 of the 1992 Constitution has clear guidelines on the excise of
discretion.<o:p></o:p>When
a person is vested with a discretionary power, the Constitution enjoins that:<o:p></o:p>(a) “The discretionary power shall be
deemed to imply a duty to be fair and candid;” and<o:p></o:p>(b) “The exercise of the discretionary
power shall not be arbitrary, capricious or biased either by resentment, prejudice
or personal dislike and shall be in accordance with due process of law.”<o:p></o:p>Case
law have further provided for clear guidelines as to the exercise of discretion
by people in authority when making decisions.&nbsp;
In Komegbevrs The Republic [1975] 2 GLR 170, the Court per Andoh J (as
he then was) adopted the meaning of “discre</main>