ANTHONY ASEMPA vs. THE REPUBLIC [2020]DLHC10090

Date	2020-11-03
Suit No.	CC NO. CR 0643/2020
Citation No.	[2020]DLHC10090

HER LADYSHIP JUSTICE RUBY ARYEETEY

DERICK ADU-GYAMFI (For APPELLANT)

ENAM LOH-MENSAH (For REPUBLIC)

[2020]DLHC10090
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													<main id="main" class="content" style="min-height: 60rem" >ANTHONY ASEMPA<o:p></o:p>vs.<o:p></o:p>THE REPUBLIC<o:p></o:p>[HIGH
COURT (CRIMINAL COURT 1), ACCRA]<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

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padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">CC
NO. CR 0643/2020&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 3RD&nbsp; NOVEMBER, 2020<o:p></o:p>

</div>COUNSEL:<o:p></o:p>DERICK ADU-GYAMFI (For APPELLANT) <o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

ENAM
LOH-MENSAH (For REPUBLIC) <o:p></o:p>

</div>CORAM:<o:p></o:p>HER LADYSHIP
JUSTICE RUBY ARYEETEY<o:p></o:p><div style="border-top-width: 1.5pt; border-top-color: windowtext; border-left: none; border-bottom-width: 1.5pt; border-bottom-color: windowtext; border-right: none; padding: 1pt 0cm;">

<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
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mso-border-bottom-alt:solid windowtext 1.5pt;padding:0cm;mso-padding-alt:1.0pt 0cm 1.0pt 0cm">RULING<o:p></o:p>

</div>&nbsp;This motion for bail pending appeal was filed on 14th
September, 2020. Subsequently, a supplementary affidavit followed on 19th
October, 2020. Counsel relied entirely on all the averments in the affidavit in
support and also the supplementary affidavit.&nbsp;
Coming under Section 33 of the Courts Act 1993, Act 459, Counsel argued
that the judgment delivered by the trial Court Judge in the instant case for
which they were appealing was wrong in law. Referencing the case Agbodakpi Vs.
The Republic [2008] Vol 2 of Ghana Monthly judgment page 33 where the Court of
Appeal gave four circumstances which should guide the court in such an
application. Counsel submitted that looking at the sentence handed down to the
Accused, it is wrong in law. This is because the Appellant pleaded guilty to
some of the charges and not guilty to some others.&nbsp; The Appellant was also not represented by
counsel therefore he did not understand the consequences of his plea of being
guilty.&nbsp; Counsel submitted that looking
at the length of sentence which is one year handed down to the Appellant it is
likely that the Appellant will serve the whole of his sentence before the
appeal will be heard. Counsel added that he had attached a notice of appeal to
the application as Exhibit B and submitted that they have good and arguable
grounds of appeal which is likely to succeed.&nbsp;
Also looking at the nature of the sentence and the delay in the
preparation of record of appeal the hearing of the appeal is likely to delay
and it would cause injustice to the Appellant if this application is not
granted because he is likely to serve the whole or substantial portion of his
sentence.&nbsp; <o:p></o:p>Prosecution opposed the application and relied on
their affidavit in opposition filed on the 30th September, 2020.
They reiterated that the Appellant had failed to demonstrate any exceptional or
unusual ground for which reason this application for bail pending appeal should
be granted. Prosecution argued that on the face of the record, the conviction
of the Appellant is not wrong and at such there is no prospect of an appeal succeeding.&nbsp; In addition the Appellant they submitted
failed to demonstrate that the nature of this case is one that will necessitate
the freedom of the Appellant to enable him confer with his counsel in order to
prepare his appeal.&nbsp; Moreover contrary to
counsels assertions, the record of proceedings from the trial court clearly
show that the appellant fully understood the consequences of his pleas.&nbsp; They submitted that the instant application
does not warrant the exercise of this court’s discretion in favour of the
appellant prayed that same be dismissed. <o:p></o:p>I have considered the application for bail pending
appeal before me and the arguments made by both sides. &nbsp;Bail pending appeal has been held by the
courts to be an unusual procedure and thus the courts are normally cautious in
granting same having regard to the fact that the applicant would have been
convicted by a court of competent jurisdiction. The principles governing
application for bail pending appeal are now quite well established. In FYNN V
THE REPUBLIC [1971] 2 GLR 433, Taylor J (as he then was) held that an
application for bail pending appeal ought not to be dealt with lightly because
it involves the proposition that a person who has been found guilty and
convicted by a court of competent jurisdiction and whose sentence of
imprisonment has not been set aside must nevertheless be let loose on the
community instead of his staying in prison to serve a sentence which is prima
facie deserved. He however gave four grounds under which bail pending appeal
may be granted. These are:<o:p></o:p>&nbsp;a.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
if there are
exceptional or unusual grounds for the application<o:p></o:p>b.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; if the conviction is prima facie wrong and the
appeal therefore has obvious prospects of success<o:p></o:p>c.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; if it is a case of such a nature where it would be
of real assistan</main>