ISSAH AYABA (APPELLANT) vs. THE REPUBLIC (RESPONDENT) [2018]DLHC7043

Date	2018-11-22
Suit No.	SUIT NO. F22/57/18
Citation No.	[2018]DLHC7043

HIS LORDSHIP JUSTICE RICHARD ADJEI – FRIMPONG J

EBO DONKOR ESQ. FOR THE APPELLANT.

GEORGE SACKEY ESQ. FOR THE RESPONDENT.

[2018]DLHC7043
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													<main id="main" class="content" style="min-height: 60rem" >ISSAH AYABA<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><o:p>&nbsp;</o:p>[HIGH
COURT, SEKONDI]<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. F22/57/18 &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:
22ND NOVEMBER, 2018<o:p></o:p>

</div>COUNSEL:<o:p></o:p>EBO
DONKOR ESQ. FOR THE APPELLANT.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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GEORGE SACKEY ESQ. FOR THE
RESPONDENT.<o:p></o:p>

</div>CORAM:<o:p></o:p>HIS
LORDSHIP JUSTICE RICHARD ADJEI – FRIMPONG J.<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<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>The appellant in this case was
charged and arraigned before the circuit court, Tarkwa with the offence of
Prohibition on Possessing Narcotic Drug contrary to section 2(1) of the
Narcotic Drugs (Control, Enforcement and Sanctions) Act 1990, PNDCL 236. <o:p></o:p>He stood charged together with one
Albert Cudjoe, alleged to have abetted appellant to commit the crime.<o:p></o:p>The appellant, as A1, pleaded guilty
with explanation whilst Cudjoe, A2, pleaded not guilty.<o:p></o:p>The facts presented by the
prosecution at the court below are material to the determination of this appeal
and I reproduce them as follows:<o:p></o:p>On 11/4/10 at about 12pm, police had
information that the accused persons were transporting quantity of dried leaves
cannabis sativa (Indian hemp) from Sefwi Homegyebre heading towards Asankragwa.
Based on the information, police laid ambush at the outskirts of Asankragwa on
the Sefwi Bekwai—Asankragwa main road. An hour later, a taxi cab with
Registration No. AS 198-10 pulled up from the Sefwi Bekwai direction and when
the driver was signaled to stop, he ignored. The vehicle was then pursued to a
distance and arrested with four occupants on board. In the course of the
arrest, one of the occupants managed to escape. A search was conducted on the
vehicle and a quantity of dried leaves, cannabis sativa were found in the booth
and on the back seat in three fertilizer sacks. The accused together with the fertilizer
sacks were escorted to the charge office and when the exhibits were counted in
the presence of the accused persons and an independent witness, it was found to
be ninety-eight (98) compressed parcels of the substance. The accused, Issah
Ayaba (appellant) when interrogated mentioned one Abu of Enchi as the owner of
the stuff and was transporting it to him. Cudjoe on the other hand stated that
Issah only sought his assistance to convey something to Enchi for a token to
his friend but realized it was cannabis sativa on their way before the police
intercepted them.<o:p></o:p>On 18/6/10, the exhibits were
forwarded to the police forensic laboratory for examination.<o:p></o:p>On 25/10/10, Forensic examination
report on the exhibit was received indicating that it was cannabis sativa
weighing 16.085kg. After investigations, the accused were charged with the
offences.<o:p></o:p>The appellant’s recorded explanation
was that it was true he was sending the drugs to Enchi to be given to an
unknown person at Enchi.<o:p></o:p>The trial judge took the explanation
for an admission of the offence and convicted the appellant accordingly. He
proceeded to impose a 15-year jail term on him.<o:p></o:p>Aggrieved by this sentence, the
appellant appeals in this court.<o:p></o:p>The grounds of appeal are set out in
his petition as follows:<o:p></o:p>(a)That
the sentence was harsh and excessive having regard to the circumstances.<o:p></o:p>(b)
He was a first offender and the court ought to have dealt with him leniently.<o:p></o:p>(c)He
was a young offender, 26 years old at the time of the offence.<o:p></o:p>As I can see, there was no point in
separating the grounds of appeal in the petition. All the listed grounds speak
of one thing. Simply, the trial judge failed to take into account available
mitigating factors in imposing the sentence thus, rendering the sentence harsh
and excessive.<o:p></o:p>Unsurprisingly, Counsel for the
appellant appears to have put all the grounds together in his argument.<o:p></o:p>First it is pointed out that the
appellant pleaded guilty and did not waste the court’s time and state
resources. Second, he is a first offender of a younger age of 26. Besides, he
did not benefit from the crime.<o:p></o:p>Counsel further observes that the
trial judge was unduly swayed by the quantum of the substance without
considering available mitigating factors as required by law. The arguments can
be found summed up in Counsel’s submission as follows:<o:p></o:p>“My
Lord, from the judgment of the Circuit Court, it is clear that the judge did
not take into account any mitigating factors before passing sentence. It is also
clear from the judgment that the deterrent consideration and quantum of the
substance was what influenced the sentence. It is our humble submission that if
the trial judge had taken into account mitigating factors like the age of the
Appellant (26) years at the time; pleading guilty simplicitor [sic], being
first time offender and not benefitting from the act, the sentence would have
been lesser than the 15 years.<o:p></o:p>