ABDULAI FUSEINI vs. THE REPUBLIC [2018]DLSC5987

Date	2018-06-06
Suit No.	CRIMINAL APPEAL NO: J3/02/2018
Citation No.	[2018]DLSC5987

ANSAH JSC (PRESIDING)

ADINYIRA (MRS) JSC

DOTSE JSC

YEBOAH JSC

BAFFOE-BONNIE JSC

AHUMAH OCANSEY FOR THE 3RD ACCUSED/APPELLANT/APPELLANT.

ELIZABETH SACKEYFIO SENIOR STATE ATTORNEY FOR THE RESPONDENT

[2018]DLSC5987
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													<main id="main" class="content" style="min-height: 60rem" >ABDULAI FUSEINI<o:p></o:p>(3RD
ACCUSED/APPELLANT/APPELLANT)<o:p></o:p>vs.<o:p></o:p>THE REPUBLIC<o:p></o:p>(RESPONDENT/RESPONDENT/RESPONDENT)<o:p></o:p>[SUPREME COURT, ACCRA]<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: J3/02/2018&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 6TH JUNE,
2018<o:p></o:p>

</div>COUNSEL:<o:p></o:p>AHUMAH OCANSEY FOR THE 3RD
ACCUSED/APPELLANT/APPELLANT.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</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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ANSAH
JSC (PRESIDING), ADINYIRA (MRS) JSC, DOTSE JSC, YEBOAH JSC, BAFFOE-BONNIE 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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JUDGMENT<o:p></o:p>

</div>DOTSE JSC:-<o:p></o:p>This
appeal is at the instance of the 3rd Accused/Appellant/Appellant,
(hereafter referred to as Appellant) against the judgment of the Court of
Appeal dated 28th May 2015. By their judgment, the Court of Appeal
coram: Marful-Sau, Acquaye and Gertrude Torkornoo (Mrs) JJA of even date,
considered an appeal lodged by the Appellant herein against his conviction and
sentence of 20 years by the High Court, Accra on the 20th July, 2010
in respect of two counts of conspiracy to commit robbery and robbery contrary
to section 23 (1) and 149 of the Criminal and other Offences Act, 1960 Act 29
as amended by Act 646 of 2003. <o:p></o:p>FACTS<o:p></o:p>On or
about 5th October 2003 at
about 1:00am at Old Water Works near Akuse on the Kpong- Tema Motorway, the
appellant and four other persons armed with guns and cutlasses robbed one Teye
Ameko. They made away with a shot gun valued at 1.5 million cedis (old cedis) ,
one packet BB Cartridge valued at eight hundred thousand old cedis (800,000)
and cash the sum of one hundred and Forty four million, eight hundred thousand
(old cedis) (144,800,000) all belonging to the said Teye Ameko( hereinafter
called the victim). In the process, the victim was slashed with a cutlass by
the first and fifth accused persons and was severely injured with a deep cut at
the left hip of his spinal cord and his shoulder. The accused persons left the
victim, who bled profusely until he was rescued by two of his children. Upon
finding their father in such a critical state with his intestines gushing out,
the children rushed him to the Akuse Government Hospital where he was also
referred to Narh-Bita Hospital in Tema. 
 
On 7th October 2003, two days after the
incident, the Police acting upon a tip off arrested the accused persons at a
drinking spot in Akuse. The fifth accused person however evaded arrest and was
subsequently arrested at Ashiaman Lorry Station. An identification parade was
conducted where all accused persons including the appellant were identified by
witnesses.<o:p></o:p>DECISION AT THE TRIAL COURT<o:p></o:p>On the
20th of July 2010, His Lordship Kusi Appiah JA sitting as an
additional Justice of the High Court (Fast Track Division) found all accused
persons including the appellant guilty of all the charges, convicted and
sentenced all of them to 20 years IHL.<o:p></o:p>The
trial court was of the opinion that the prosecution had proved their case
beyond reasonable doubt and that all the ingredients of the conspiracy and
robbery had been established. In respect of the appellant, the trial judge, per
the facts and evidence before the court, found inconsistencies in the
appellant's testimony given during the trial and his caution statement taken
upon arrest, when the events were still fresh in his memory. The court
therefore found the appellant as an untruthful and unfaithful witness, whose
testimony under oath was, to the court, an afterthought and thus could not be
relied on. At page 20 of the Record of Appeal, the learned judge stated:<o:p></o:p> 
" I find the story of the 3rd
accused under oath as an afterthought. The apparent inconsistencies,
contradictions, ambiguities and lingering doubts in the evidence of</main>